Archive for the ‘USERRA’ Category
This posting will address some of the protections afforded to members of the military and veterans under the Uniformed Services Employment and Reemployment Rights Act (USERRA).
The Uniformed Services Employment and Reemployment Rights Act of 1994 is a federal law intended to ensure that persons who serve or have served in the Armed Forces, Reserves, National Guard or other “uniformed services:” (1) are not disadvantaged in their civilian careers because of their service; (2) are promptly reemployed in their civilian jobs upon their return from duty; and (3) are not discriminated against in employment based on past, present, or future military service. The federal government is to be a “model employer” under USERRA.
“Uniformed services” includes the Armed Forces; the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty; the commissioned corps of the Public Health Service; and any other category of persons designated by the President in time of war or national emergency.
One of the requirements of USERRA is that employers post notice to their employees of their rights under USERRA. This typically takes the form of a poster, the form of which is provided by the U.S. Department of Labor.
If an employee who falls under the protection of USERRA wishes to make a complaint under the Act, he or she may make a complaint to the ESGR Ombudsman. The ESGR Ombudsman Services Program was established to provide information, counseling, and mediation on issues related to the Uniformed Services Employment and Reemployment Rights Act (USERRA). ESGR Ombudsman Services consists of a Customer Service Center to answer phone calls and e-mails involving USERRA questions. Specially trained Ombudsmen are available to assist members of the Guard and Reserve in resolving disputes with their civilian employers related to military service in the Uniformed Services through mediation.
ESGR’s Customer Service Center is available for anyone with a USERRA question. ESGR’s Customer Service Center can be reached Monday thru Friday (except Federal Holidays) 8AM to 6 PM (EST) at 1-800-336-4590 (option 1), by e-mail, or by submitting a USERRA Assistance Request online.
Under USERRA, an employer must not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to an individual on the basis of his or her membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services. In addition, an employer must not retaliate against an individual by taking any adverse employment action against him or her because the individual has taken an action to enforce a protection afforded any person under USERRA; testified or otherwise made a statement in or in connection with a proceeding under USERRA; assisted or participated in a USERRA investigation: or, exercised a right provided for by USERRA.
In order to be afforded the protections of USERRA, the employee must give notice to the employer. The employee, or an appropriate officer of the uniformed service in which his or her service is to be performed, must notify the employer that the employee intends to leave the employment position to perform service in the uniformed services, with certain exceptions described below. In cases in which an employee is employed by more than one employer, the employee, or an appropriate office of the uniformed service in which his or her service is to be performed, must notify each employer that the employee intends to leave the employment position to perform service in the uniformed services, with certain exceptions described below. The employee’s notice to the employer may be either verbal or written. The notice may be informal and does not need to follow any particular format. Although USERRA does not specify how far in advance notice must be given to the employer, an employee should provide notice as far in advance as is reasonable under the circumstances. In regulations promulgated by the Department of Defense under USERRA, 32 CFR 104.6(a)(2)(i)(B), the Defense Department “strongly recommends that advance notice to civilian employers be provided at least 30 days prior to departure for uniformed service when it is feasible to do so.” The employee is required to give advance notice of pending service unless giving such notice is prevented by military necessity, or is otherwise impossible or unreasonable under all the circumstances.
Generally, with some exceptions, the employee may perform service in the uniformed services for a cumulative period of up to five (5) years and retain reemployment rights with the employer. There are some exceptions.
Upon completing service in the uniformed services, the employee must notify the pre-service employer of his or her intent to return to the employment position by either reporting to work or submitting a timely application for reemployment. Whether the employee is required to report to work or submit a timely application for reemployment depends upon the length of service.
There are many detailed provisions dealing with the Act and you should confer either with the Ombudsman or an employment law attorney to determine your rights under this law.
There is a wealth of useful information about USERRA including FAQs and forms at the web site for the Employer Support of the Guard and Reserve. http://www.esgr.org/site.
If there is a violation of this Act, consult with an employment law attorney since there are legal causes of action that you can bring under these laws against an employer that violates USERRA.