The USERRA:
Veterans' Rights in the Workplace
Federal and state laws protect veterans and service members returning from military service from discrimination, retaliation, and harassment based on their military service. Federal and state law also entitles veterans and service members to reemployment under certain circumstances. This section is intended to give veterans, service members and employers a basic overview of the major statutes and what they require.
If you are a veteran or service member who believes his or her rights have been violated, or if you are an employer seeking advice on complying with these requirements, please contact the lawyers of Fried & Bonder, LLC.
Federal and state laws prohibit discrimination against veterans returning from military service. Specifically, the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) requires reemployment of non-career service members and prohibits discrimination based on service. As more and more veterans return from service abroad in Afghanistan, Iraq and elsewhere, observers expect USERRA cases to be litigated with increasing frequency.
What Employees Are Covered?
USERRA covers employees who are engaged in active duty, training, inactive duty training, and full-time National Guard Duty, as well as employees who are absent to for purposes of determining fitness for duty.
What Employers Are Covered?
USERRA applies to virtually all employers, no matter the number of employees, both public and private. A separate Georgia anti-discrimination statute, O.C.G.A. § 38-2-279, also applies to public employers in Georgia.
What Is Required of Employees to Obtain USERRA Protection?
Under USERRA, employees are required to:
- Give advance notice of service to their employer
- Serve for a cumulative length of less than five years
- Promptly apply for reemployment upon the conclusion of service
An employee who does not satisfy these requirements loses USERRA coverage.
The application for reemployment must be submitted within certain time frames which vary depending on the length of service:
- For periods of service of 30 days or less, the employee must apply on the first full regularly scheduled workday following the period of service
- For periods of service more than 30 days but less than 180 days, the employee must apply no later than 14 days after the completion of service
- For periods of service greater than 180 days, the employee must apply no later than 90 days after the completion of service.
What Must Employers Do to Comply with USERRA?
An employer is required to reemploy a USERRA-qualified service member in the same position he or she would have held but for the military service. In other words, under proper circumstances, an employee may be entitled to promotion or pay increase upon his or her return from service if the employee would have received such a promotion or pay increase but for the military service.
Like the application requirement, the reemployment requirement varies somewhat depending on the length of service. For periods of service less than 90 days, the employer must reemploy the service member in the position he or she would have held but for the service or, if unqualified for that position, in his or her former job. For periods of service greater than 90 days, the employer must reemploy the service member in the position he or she would have held but for the service or, if unqualified for that position, then a position of like seniority, status and pay, or, if unqualified for that position, then his or her former job.
USERRA also protects service members who become disabled during service. If a returning service member is unqualified for his former position because of an injury sustained during service, the employer must reemploy the employee in a position of equivalent status, seniority and pay or a position that is the nearest approximation of the employee’s seniority, status and pay. An injury during service extends by two years the application for reemployment requirement.
Additionally, USERRA prohibits discrimination, retaliation and harassment of returning service members based on their military service. It also modifies the “terminable at will” doctrine that exists in many states, including Georgia. USERRA prohibits covered employers from discharging a reemployed service member except “for cause” for a period of time that varies depending on the length of the service. For a service member who served greater than 180 days, he or she may only be terminated “for cause” for one year. For a service member who served less than 180 days, the period is six months.
What Are the Remedies for USERRA Violations?
The remedies for USERRA violations include:
- Injunctive relief (ordering the employer to comply with USERRA)
- Lost wages
- Statutory penalties for willful violations of the statute
- Attorneys’ fees and expenses for prevailing plaintiffs
If you believe your USERRA rights have been violated, or you are an employer seeking advice on USERRA compliance — call the firm's Atlanta, Georgia, offices directly at 404.963.9443 or contact the attorneys online.
