Military servicemembers and veterans have unfortunately experienced discrimination and retaliation in the civilian workplace for various reasons, including challenges balancing civilian work with their military obligations and negative stereotypes about current and former servicemembers. Fortunately, federal laws establish various employment protections for veterans and servicemembers. One such law includes the Uniformed Services Employment and Reemployment Rights Act (USERRA).
USERRA prohibits civilian employers from discriminating or retaliating against members of the uniformed services regarding initial employment, reemployment, retention, promotion, or any other employment benefit due to the member’s military status. Congress passed USERRA to encourage non-full-time active-duty service, including service in the Reserves or National Guard. The law incorporated existing laws against employment discrimination or retaliation based on current or former military service.
In this article, we at Cruz Law Firm, P.A., explain what this law is about, how it provides protections for veterans, and what you can do to protect your rights.
Eligibility Requirements for USERRA Protections
USERRA’s protections cover servicemembers who hold most forms of civilian employment. However, USERRA exempts certain employers from its scope, including Native American tribes, religious institutions, the federal Judiciary, foreign embassies and consulates, and international organizations with diplomatic immunity.
USERRA applies to any employee who currently performs or previously performed service in a uniformed service or to anyone who has applied to perform or has an obligation to perform service in a uniformed service. The law applies to all full-time and part-time employees but does not cover independent contractors.
Reemployment Rights of Veterans
USERRA protects reemployment rights for veterans who step away from civilian employment to fulfill their military service obligations. Specifically, the law protects veterans’ right to return to civilian jobs.
Moreover, USERRA includes an “escalator clause,” under which civilian employers must treat a veteran’s service time spent away from their job while performing military duties as service time with the employer. This entitles the veteran to the same seniority, pay, and benefits they would receive had they not stepped away from their civilian job to perform military service.
An employer who cannot hold a veteran’s job for their return must offer them an equivalent position (including accrued seniority, pay, and benefits) upon their return to civilian employment.
Military Leave and Job Protection
To trigger reemployment rights and job protections for veterans under USERRA, a veteran must follow specific guidelines and requirements, including:
- Giving their civilian employer advance notice of the veteran’s military status
- Having spent fewer than five years in the military since the veteran’s last date of employment
- Returning to civilian work within a reasonable time after returning home from military service
- Having finished a term of service or received an honorable discharge from the uniformed services
A servicemember who meets the requirements under the law when taking military leave will enjoy job protection upon their return to civilian employment. These protections include:
- Protection against disciplinary action, such as discipline for missed time from work
- Protection against demotions
- Protection against denial of leave benefits
- Protection against denial of insurance coverage offered by the employer to other workers in the veteran’s position
- Protection against denial of bonuses, commissions, the ability to select work hours, or other benefits of the veteran’s position
- Protection against denial of accrued seniority during the veteran’s military service
Benefits During and After Military Service
Other benefits and protections offered to servicemembers during and after their military service include:
- Employers cannot discriminate against current servicemembers or veterans honorably discharged from the uniformed services in any employment decision due to the servicemember’s or veteran’s military service, including initial employment, reemployment following return from military service, retention during business restructuring, promotions, bonuses, pay raises, and work opportunities.
- Employers may not reject a candidate for employment based on the candidate’s plans to serve in the uniformed services or their previous service.
- Employers must treat a covered servicemember’s protected service as accrued service time for seniority, pay, and other benefits with the employer.
- Employers may not retaliate against a servicemember or veteran for exercising their rights under USERRA, including by disciplining, demoting, or firing the worker, denying favorable work assignments, reducing pay, or denying raises or bonuses.
- Employers cannot discriminate or retaliate against other coworkers who assist servicemembers or veterans with exercising rights under USERRA, such as when coworkers participate in regulatory investigations or provide testimony in a deposition, administrative hearing, or legal proceeding.
Common Challenges in USERRA Compliance
Common challenges and issues that can arise regarding USERRA include:
- Failing to document military status or service properly
- Not promptly returning to civilian employment after completing a period of military service
- Misinterpreting the applicability of USERRA to the employer or an employee
- Questions over how to handle week/weekend service, short-term deployments, or medical leave for service-connected medical issues
- Failing to reemploy or offer an equivalent position to a returning servicemember or veteran
- Disputes over whether an employer has offered equivalent pay, benefits, and seniority for a servicemember’s or veteran’s protected military service
- Failing to provide reasonable accommodations to veterans for service-connected disabilities
- Taking adverse employment action against a servicemember or veteran who has returned from military service, including when the employer did not make the decision due to the servicemember’s or veteran’s military status
- Taking adverse employment actions against coworkers who assist servicemembers and veterans with exercising their USERRA rights
Take the Next Step to Protect Your Rights
As a veteran, federal law provides you with significant legal protections in employment for your veteran status. Turn to Cruz Law Firm, P.A., to better understand employment protection for veterans. Our firm has nearly 20 years of experience advocating for the rights and interests of workers who have suffered unfair treatment or discriminatory practices. Our proven track record includes over $15 million recovered for clients. As one client said about our dedicated approach to representing clients:
“Tiffany Cruz was great to work with on my employment case. She is extremely knowledgeable and a fierce advocate in fighting to make things right with my employer. Made me feel good to have someone like her on my side” – Luis F.
If you have concerns about protecting benefits for disabled veterans, act now and contact Cruz Law Firm, P.A., today, for a confidential consultation. Let our lawyers discuss your legal options when you’ve experienced an adverse employment action due to your military veteran status.
