subject: USERRA—Discrimination Based on Military Service [print this page] USERRADiscrimination Based on Military Service
The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects service members' reemployment rights when returning from a period of service in the military, including those called up from the reserves or National Guard and prohibits employer discrimination based on military service or obligation. The U.S. Department of Labor's (DOL) Veterans' Employment and Training Service (VETS) administers USERRA. USERRA covers the Army, Navy, Marine Corps, Air Force, Coast Guard and Public Health Service commissioned corps.
Basically, USERRA states that if you are called to active duty, you cannot lose your job even if you volunteer for active duty. It also protects members of the Army National Guard and Air National Guard when they are called to serve, known as Title 10 status. If you think your rights have been violated by your employer, you should contact an employment lawyer knowledgeable of USERRA as soon as possible. He or she can advise you of your rights and whether or not you have a claim against your employer.
USERRA Requirements
In order to qualify for rehire under USERRA, the employee must give advance notice of his or her service obligation to his employer unless precluded from doing so by military necessity or it is otherwise impossible. Also, upon the conclusion of the employee's military obligation, the employee must submit an application for reemployment.
Depending on the circumstances, a returning service member may have to give such notice almost immediately (if the period of service was less than 31 days) or he or she may have as long as two years to do so (in some cases of service-connected illness or injury). There is also a limit on cumulative military service of five years, although there are many periods of service that do not count against the five-year total. As you can see, USERRA is not a black and white type of provision, and for this reason, it is highly recommended you find an experienced employment attorney with USERRA knowledge to help you should your employer not comply with USERRA regulations.
Unlike most employment and personal injury claims, there is no statute of limitations on a USERRA claim and one can be filed at any time, but you should still file as soon as possible. A delayed filing can impact the type of relief a judge is willing to award. For example, in the case of a service member who has lost his or her job, a judge may not be willing to require a company to reinstate the service member if he or she has waited several years to file a complaint. If your employer can prove that a delay in filing has prejudiced it, due to a death or relocation of key witnesses, the judge may dismiss your claim.
