Published in Houston Business Journal, May 2003
The Uniform Services Employment and Reemployment Rights Act (USERRA) prohibits employers from discriminating or retaliating against employees with military service obligations, including reservists and National Guard members called to active duty. USERRA covers all public and private civilian employers regardless of size, requiring them to provide employees with leave for military service and reinstatement to the same seniority, status, pay, benefits, and rights as if they had remained continuously employed. USERRA also requires that employers count military leave when determining pension benefits and vesting status. Employees called to duty can opt to continue participation in health care benefits under provisions similar to COBRA.
Under USERRA, employees must give their employer written or verbal notice that they have been called to active duty (typically for 31 to 180 days), and must apply for reemployment within 14 days after their active duty ends. Only a dishonorable discharge eliminates an employee’s USERRA rights. Reemployment is also not required if a legitimate reduction in force eliminates the employee’s position while on active duty, but employers bear the burden of reasonable proof in such instances. USERRA-covered employees also cannot be terminated within a year of their return except for cause, and must receive reasonable accommodations under the ADA if they are injured or disabled while on duty. Employers should proceed cautiously with any denial of USERRA rights, because they can be compelled to provide reinstatement and be assessed damages (including limited punitive damages) if they are held to be in violation. Reported decisions in USERRA litigation show that courts are interpreting the law liberally in favor of employees.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.