Protections for Veterans in Employment Under USERRA

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.

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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