What Rights Do Military Service Members Have in the Workplace Under USERRA?

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law designed to protect the rights of individuals who serve in the military, ensuring that they are not disadvantaged in their civilian employment due to their military service. Here’s an exploration of the key rights that military service members have in the workplace under USERRA.

Reemployment Rights

One of the fundamental rights USERRA provides is the right to be reemployed after returning from military service. Employees who leave their civilian jobs to serve in the uniformed services, including the Armed Forces, Reserves, and National Guard, have the right to return to their civilian positions, assuming they meet certain conditions. For example: 

• Your employer was given advanced written or verbal notice of your service;
• You have no more than five years of cumulative service in the uniformed services while with that specific employer;
• At the conclusion of your service, you apply for reemployment or return to work in a timely manner;
• You have not received a disqualifying discharge or left the service under conditions other than honorable.

Non-Discrimination

USERRA prohibits discrimination against individuals based on their military service. For instance, employers are prohibited from denying initial employment, retention in employment, promotion, or any other employment benefit based on an employee’s military service or obligation.

Protection Against Retaliation

USERRA protects service members from retaliation for asserting their rights under the law. Employers cannot take adverse employment actions against employees for engaging in protected activities, such as taking military leave or seeking reemployment after military service.

Accommodations for Disabilities

If a service member returns with a service-related disability, USERRA requires employers to make reasonable efforts to accommodate that disability. This may involve making adjustments to the workplace or job duties to enable the employee to perform the essential functions of the position. However, the service member must be placed in a position equivalent in seniority, status, and pay compared to their original position. 

Health Insurance Benefits

Service members are able to continue their existing employer-based health plan coverage and for their eligible dependents for up to two years while in the military. 

Training and Qualification

USERRA requires employers to provide returning service members an opportunity to attend training necessary to maintain or improve their job skills. 

Right to Dispute Resolution

If there are disagreements or violations related to employment rights, service members have the right to dispute resolution. USERRA encourages informal resolution of disputes whenever possible, which can be done through the Department of Labor’s Veterans’ Employment and Training Service (VETS). VETS will then investigate the complaint and attempt to resolve the matter through negotiation or other informal means. If VETS cannot resolve the issue, you can request that your case be referred to the Department of Justice or the Office of Special Counsel. In addition, you also have the right to bypass the VETS process and pursue formal legal action instead. 
If you or a loved one’s rights under USERRA have been violated, speak to a trusted Orange County Employment Attorney as soon as possible. We can advise you on your case and legal options in a free consultation.