Current and former members of the military have special protections under federal law when it comes to employment rights. There are several federal laws that govern the employment rights of military personnel. One of the primary laws that protect military personnel is the Uniformed Services Employment and Reemployment Rights Act (USERRA).
USERRA protects job rights for veterans, as well as members of Reserve Components. USERRA provides that an individual may be absent from work for military duty, and can retain the rights to reemployment for up to five years. In some cases, the absence can be longer than five years, such as in the event of involuntary active duty extensions and recalls, especially if there’s a national emergency.
In addition to allowing the veterans and Reservists to retain their jobs, USERRA provides that returning service-members should be reemployed in the same job they would have attained if they had not been absent for military service. This includes receiving the same seniority, status, and pay that they would have if they had not left, as well as other rights that are determined by seniority. Employers should also make reasonable efforts to help the individuals upgrade their skills. If the veteran or Reservist can’t qualify for the higher position once he or she returns, the employer is to provide alternative reemployment positions. An employer is also required to continue health and pension plan coverage for up to 24 months, but the employee may be required to pay up to 102 percent of the full premiums. An employee who chooses not to continue coverage has the right to be reinstated once he or she is reemployed without any waiting periods or exclusions.
Under USERRA, the veteran or Reservist is required to give written advance notice or verbal notice to employers for all military duty, unless the notice is impossible or unreasonable. The notice should be given as far in advance as possible. Service members are allowed, but don’t have to, use vacation or annual leave that has accrued while on military duty.
In addition to providing reemployment rights, USERRA prohibits discrimination or retaliation in the workplace on the basis of military service. Under USERRA, if an individual is a past or present member of the uniformed service, has applied for membership in the uniformed service, or is obligated to serve in the uniformed service, an employer can’t deny the individual initial employment, reemployment, a promotion, or any other employment benefit on the basis of the service. Also, employers can’t retaliate against anyone who helps in the enforcement of USERRA rights, even if he or she is not connected to the military. For example, if an employee testifies in a USERRA case that she heard the boss say an individual was going to be fired due to military service, that individual can’t be retaliated against for helping with the case.
The U.S. Department of Labor, Veterans Employment and Training Service (VETS) is authorized to investigate and resolve complaints of USERRA violations. The case can also be referred to the Department of Justice or the Office of Special Counsel. However, a person who has a USERRA complaint can also hire a private attorney and bring a civil case against the employer for violating USERRA.
At Liberty Law, Micha Star Liberty believes that veterans and Reservists should receive all the benefits to which they are entitled because of their military service. If their rights are violated by an employer, they are entitled to damages, which can include compensation for back pay and benefits.
If you have had your legal rights under USERRA violated, call Liberty Law at 510-645-1000 or 415-896-1000. She works with employees in the Oakland and San Francisco Bay areas, including Fairfield, Berkeley, Tracy, Hayward, and the surrounding areas. Call today to learn more.