The Uniformed Services Employment and Re-employment Act (USERRA)
When people go off to serve in one of our country's uniformed services, they leave behind a lot of things. They leave behind spouses, children, and parents. They leave behind homes, friends, and familiar places. Many also leave behind jobs and careers.
Because the United States depends on volunteers to fill its uniformed services, Congress has passed many laws to make it easier for people to serve our county without losing the civilian lives they have built for themselves. One of these laws is the Uniformed Services Employment and Re-employment Rights Act, or USERRA.
USERRA was passed by Congress in 1994. It is the most recent in a series of laws passed by Congress beginning during World War II. These laws have all tried to make it easier for veterans to get back to work after their service has ended. USERRA does two important things. First, it makes it illegal to discriminate against somebody (treat them differently) because they are a member of a uniformed service. Second, it requires employers to give returning veterans their old jobs back in many situations. Before we describe these two protections in detail, however, we need to talk about who is covered by USERRA.
There is a reason we have been using the term "uniformed services" in this article, rather than the term "armed services" or "armed forces." USERRA doesn't just protect people in the Army, Navy, Air Force, Marine Corps, and Coast Guard. It also protects people who are reservists, or in the Army or Air National Guard. It protects people who belong to the Commissioned Corps of the Public Health Service, and to any other organization that the President designates a "uniformed service."
USERRA does not protect only members of the uniformed services who are on "active duty." You are entitled to USERRA's protections if you have to leave your job to train, to be examined to see if you are fit for duty, and to perform funeral honors for a fellow reservist or member of the National Guard.
You are covered by USERRA if you are a citizen, national, or legal permanent resident of the United States.
Which Employers USERRA Covers
USERRA defines an "employer" as any person or organization that "pays salary or wages for work," including Federal, state and local governments. It also includes workplaces in foreign countries that are controlled by American citizens or companies.
No Discrimination Allowed
As we saw earlier, USERRA does two important things. The first thing it does is make it illegal for an employer to discriminate against a worker because that worker is a member of a uniformed service. "Discriminate" means to treat differently. Some of the things an employer cannot do to you because you are in a uniformed service include:
- refusing to hire you;
- refusing to rehire you;
- refusing to retain (continue to employ) you;
- refusing to promote you; and
- refusing you benefits, like access to health insurance or a pension plan.
An employer cannot do these things even if all you have done is apply for membership in a uniformed service. Also, an employer cannot take an adverse action (such as disciplining or firing) against you or anyone else because you have tried to enforce your rights under USERRA or helped the government enforce your rights. We'll talk more about enforcing your rights later.
Back to Work
For many workers, the best thing USERRA does is require their employers to keep their jobs for them while they are performing their duties in one of the uniformed services. There are a couple of exceptions to this, and a couple of things you have to do before you can actually get your job back, so let's look at this "re-employment right" one step at a time.
Advance Notice: Before you leave your job to serve in the uniformed services, you have to have told your employer that you are leaving to perform your duties as a member of a uniformed service. This notice can be written or oral. To be on the safe side, as soon as you start a new job or join a uniformed service, write your employer a letter saying that you are a uniformed service member. Ask that this letter be put in your personnel file. Any time you are ordered to report for duty, do the same thing: write your employer a letter and ask that the letter be put in your file.
The Five-Year Rule: In most cases, your employer does not have to hold your job for you for more than five years. This five years is a "cumulative" period made up of all the periods of work you miss because of your uniformed service. Let's say you are deployed to a combat zone for three years. Then you come back to work for a while. Then your uniformed service sends you to a two-year training course. You have probably used up your five years. Your employer probably does not have to rehire you.
Reporting Back: When your period of active duty, training, or other service ends, you must report to your employer. How you should report (in person, by telephone, in writing) the law does not say, but it is always best to do these things in writing. When you have to report depends on the length of time you were gone. If you were gone thirty days or less, you must generally report to work at the beginning of the first regular work day after your period of service ends. If you were gone between 31 and 180 days, you must normally report within 14 days. If you were gone longer than 180 days, you will usually have 90 days to report to work. Actually, the law says you can either report to work or apply for your old job back. It's probably a good idea to do both: see your employer in person and give him or her something in writing asking for your job back. If you are recovering from an injury or other disability that resulted from your service, these deadlines start running when you recover, rather than when your service is finished.
The Same Job, More or Less: Your employer does not always have to give you back exactly the same job you left behind. USERRA has a complicated set of provisions that say what kind of job an employer has to offer you when you get back, depending on how long you were gone. Basically, the employer has to give you a job that is as close as possible to the one you had before your service, taking into account all the ways the employer's circumstances might have changed while you were gone.
The Escalator: In addition to giving you your job (or one like it) back, your employer has to give you all the seniority, status, and employer-funded benefits you would have had if you'd stayed. Labor lawyers call this "the Escalator principle:" A worker starts out at the bottom of the job escalator and slowly rises as the years go by, gaining more and more seniority, better and better jobs, and bigger and bigger benefits (this only applies to benefits that the employer pays for, not to contributions the worker must make). Under USERRA, when you come back to work after a period in the uniformed services, your employer has to put you in the same place on the "escalator" you would have been in if you hadn't "left" to do your service.
Back to the Drawing Board
There are three situations in which an employer does not have to give you your job back, even though you have met all the requirements we just talked about:
- The Employer's Business Has Changed: Maybe your employer has stopped making whatever product it hired you to help make, and you don't know anything about the products they're now making. If the employer can show that it would be "impossible or unreasonable" to rehire a worker, there isn't an obligation to do so.
- Rehiring You Would Cause "Undue Hardship" to the Employer: Let's say while you were gone, your employer had lots of financial trouble and had to lay off most of the workforce. Employers don't have to rehire workers returning from uniformed service if it would hurt them severely to do so.
- You Were Hired for a "Brief, Non-recurrent Period:" You were hired by a city recreation department for the summer, for example, or you were hired by a farmer to harvest the corn crop for this year. An employer does not have to rehire a worker if there is no reason to think that worker's job would have gone on for significant period of time.
The good news is that the employer has to prove a worker does not have to be rehired because one or more of these exceptions apply.
Losing Your Rights Under USERRA
You can lose your right to re-employment under USERRA by telling your employer in writing that you do not intend to return to your job. You can lose all your rights under USERRA by being discharged from a uniformed service under less than honorable conditions.
Enforcing Your Rights Under USERRA
The US Department of Labor is the federal agency responsible for enforcing USERRA. If you think your USERRA rights have been violated, you may file a complaint with the department's Veterans' Employment and Training Service (VETS). VETS will investigate your complaint, and try to resolve it.
If VETS cannot help, you can ask them to refer the case to the US Department of Justice. They may decide to file a lawsuit for you, although they do not have to file for you.
Whether or not you ask VETS or the Department of Justice for help, you can file a lawsuit on your own. USERRA does not say how long you have to do this. Some courts have said you must do it within four years of the action by your employer you think violated your rights. Until the Supreme Court looks at the problem or Congress changes the law, we will not know for sure. So if you think your rights have been violated, you should see a lawyer right away.
If you want to read USERRA for yourself, you can find it in the United States Code or USC. The USC is a set of books that contain all the laws passed by the US Congress. Most public libraries and college or university libraries have a set. USERRA is in volume (or "title") 38 of the USC, sections 4301 to 4333. You might also want to check out the website of the US Department of Labor at www.dol.gov. They publish several booklets and other materials about USERRA.
Helping low-income Iowans with employment issues is a priority for Iowa Legal Aid. To find out which regional office serves your county, call 1-800-532-1275 or go to our website at iowalegalaid.org. The Iowa Returning Veterans Legal Assistance Project is a special service of Iowa Legal Aid made possible with grants from Rockwell Collins and the American Legion foundation, with generous support from people concerned about the well-being of Iowa veterans. The Project provides free legal assistance, counseling and referrals to Iowa service members and their spouses before, during and after the service members have actively served in support of the global war on terrorism. To reach the Project, call 800-992-8161, or 282-8161 in Des Moines.