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Know Your Basic USERRA Rights

The Uniformed Servicemembers Employment and Reemployment Rights Act (USERRA) prohibits employers from discriminating against an employee based on his past or present military service in the initial employment, reemployment, retention in employment, promotion, or any benefit of employment. USERRA also prohibits employers from retaliating against an employee for exercising his USERRA rights, as well giving testimony in a USERRA proceeding or participating in a USERRA investigation.

The statute provides job protection to reservists and guardmen who go on active duty, but only if USERRA is strictly complied with. If you are deploying, returning from deployment or about to be deployed, you need to understand USERRA. Failure to comply with USERRA could compromise the benefits you might otherwise have. At the California Veterans Rights Center, we pursue USERRA violations to the fullest extent of the law.

Introduction

An employee absent from employment due to military service has certain reemployment rights under the statute. In order to gain USERRA protection, he must meet the following criteria: (1)He must give advance notice of his military obligation to his employer; (2)He must be away from his employer no more than 5 years due to military obligation; (3) He must return in a timely manner; and (4)He is not discharged with a disqualifying discharge or under other than honorable conditions.

Returning to work in a timely manner is determined by the amount of time the member has been on active duty. For service lasting up to 30 days, he must report to work the next scheduled work day after safe travel and 8 hours of rest; for service lasting up to 180 days, he must apply to return to work within 14 days after completion of his service; and if was on active duty or more than 180 days, the he must apply within 90 days after he has completed his service. Also, USERRA rights are forfeited if the member is discharged with a dishonorable, bad conduct, or "other than honorable conditions" discharge.

What Job Is the Returning Servicemember Entitled to?

Generally speaking, the employee has a right to a job position that he or she would have gotten, with reasonable certainty, were it not for his military service. Under this escalator rule, the member is entitled to seniority, status, and pay increases that he would have received had he not deployed. Note, that USERRA does not protect against lawful adverse job consequences. In other words, if the member was going to be laid off regardless of military service, USERRA will not protect him. Nor does USERRA protect independent contractors.

The 5 year Rule

With some exceptions, a service member loses his re-employment rights if his cumulative military service is more than 5 years.

Protection from Discharge

If the employee's most recent period of service in the military was more than 30 days, he or she must not be discharged, except for cause, for 180 days after the employee's date of reemployment if his or her most recent period of uniformed service was more than 30 days but less than 181 days; or for, one year after the date of reemployment if the employee's most recent period of uniformed service was more than 180 days.

Who is Protected

USERRA applies to all employers, public and private, large and small, as well as American companies in foreign countries, and foreign companies operating in the United States. All employees are covered, including executive, managerial, or professional employees

USERRA Protection in Initial Hiring Decision

USERRA also prohibits employers from denying initial employment to a person because his or her service. In other words, USERRA cannot discriminate based on military affiliation, performance of service, application for service, or obligation for service in the uniformed services.

Notice Requirements

An employee must give advance notice to his employer of his intent to perform military service. Failure to give proper notice could lead to a denial of USERRA protection. No specific time is required although the Defense Department recommends at least 30 days when feasible. Permission from the employer is of course not required.

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© 2012 All Rights Reserved.