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JAG LEGAL NOTES

AUG 2006

(last reviewed April 2008)

YOUR RIGHTS UNDER USERRA

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) provides reemployment protection and other benefits for veterans and employees who perform military service. It clarifies the rights and responsibilities of National Guard and Reserve members, as well as their civilian employers. It applies almost universally to all employers-including the federal government-regardless of the size of their business.

Under USERRA, if a military member leaves his civilian job for service in the uniformed services, he is entitled to return to the job, with accrued seniority, provided he/she meets the law's eligibility criteria. USERRA applies to voluntary as well as involuntary service [Section 4303(13)], in peacetime as well as wartime, and the law applies to virtually all civilian employers, including the Federal Government, State and local governments, and private employers, regardless of size. [Section 4303(4)]

In order to have reemployment rights following a period of service in the uniformed services, a military member must meet five eligibility criteria:

• You must have held a civilian job. 
• You must have informed your employer that you were leaving the job for service in the uniformed services.
• The period of service must not have exceeded five years.
• You must have been released from service under "honorable conditions."
• You must have reported back to your civilian employer in a timely manner or have submitted a timely application for reemployment.

Prohibition Of Discrimination Or Reprisal

USERRA provides that an employer or a prospective employer cannot deny you initial employment, reemployment, retention in employment, promotion, or any benefit of employment because you are a member of, apply to be a member of, or have been a member of a uniformed service or because you perform, have performed, apply to perform, or have an obligation to perform service in the uniformed services. [Section 4311(a)] USERRA also provides that it is unlawful for an employer to discriminate against you or to take any adverse employment action against you because you take an action to enforce rights under USERRA, for yourself or anyone else, because you have testified in or assisted a USERRA investigation, or because you have exercised any right under USERRA.

If one of the above protected activities (service in the uniformed services, etc.) was a motivating factor (not necessarily the only factor) in an adverse action taken against you by an employer or a prospective employer, such action is unlawful unless the employer can prove (not just say) that the action would have been taken even in the absence of the protected activity.

Assistance & Enforcement
The Veterans' Employment and Training Service (VETS), United States Department of Labor, will assist persons claiming rights under USERRA, including persons claiming rights with respect to the federal government as a civilian employer. VETS has developed an Internet-based system that will allow USERRA claimants to officially submit a claim via the internet VETS Website using an electronic version of Forms 1010 (E-1010). ESGR (Employer Support of the Guard and Reserve) and VETS staff are available to provide technical assistance prior to filing an official claim.

If you request assistance, VETS will contact your employer to explain the law and will conduct an investigation.  If the investigation establishes that a violation probably occurred, and if efforts to obtain voluntary compliance are not successful, VETS will refer the case to the Office of Special Counsel (OSC), if the employer is a federal executive agency, or the Attorney General (AG), if the employer is a state or local government or a private employer.  If the OSC or AG is reasonably satisfied that you are entitled to the benefits you seek, the OSC or AG may agree to provide you free legal representation.

If the OSC or AG decline your request for representation, or if you do not request their help, you can file suit directly, through private counsel that you retain.  If you prevail, the federal court or the Merit Systems Protection Board (MSPB, for federal-sector cases) can order the employer to pay your attorney's fees and litigation expenses.  This new USERRA provision makes the option of proceeding through private counsel much more realistic.

Regardless of who represents you, the court or the MSPB can order the employer to comply with the law and to compensate you for lost pay, including interest. USERRA expressly provides that states, as employers, are subject to the same remedies, including interest, as may be imposed upon private employers.  If the court finds that the employer's violation was willful, it may double the back pay award. (This provision for double damages does not apply to cases where the federal government is the employer.)

Need more information?
If you have questions, you can reach CSM (retired) James Sullivan, ESGR State Coordinator at 651-268-8203 or the 34^th Infantry Division Office of the Staff Judge Advocate at 651-282-4915.

CPT Lyndsey Kimber

Division Legal Advisor