What is Military Employment Discrimination?
When military service members in the Reserves or in the National Guard (when in federal status) are required to take leave from their civilian jobs for uniformed service, they have special anti-discrimination and reemployment rights. The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that requires the reemployment of service members upon discharge from their military service. It also prohibits discrimination on the basis of past, current, or future military obligations. USERRA applies to employers of all sizes and even protects part-time and probationary employees.
This article covers the basics of USERRA and its protections against military employment discrimination, with information for both employers and employees. See Employment Discrimination: Overview to learn about other workplace anti-discrimination laws and FindLaw's Military Law section for related resources.
Your Rights Against Military Employment Discrimination
Yes, employers are generally required to provide returning service members with the same or substantially similar job. But they’re also required to reemploy them with the same seniority and benefits that they would have earned had they not left for active duty. This is often called the "escalator" principle. For example, Army reservist "Jane" is next in line for an important promotion at her accounting firm, but is called into active duty for six months. During this time, two of her coworkers acquire the necessary skills and experience to also be eligible for the same promotion. Upon Jane's return, however, her employer rightly promotes her. Not every case will follow this same fact pattern, but it is a good illustration of how employers cannot discriminate against military members for their service.
Employers also are required by USERRA to make reasonable efforts to train (or retrain) returning service members for their position. However, the employers don't have to promote individuals who are no longer qualified. In these instances, returning service members should be reemployed in the next-highest position or their pre-service position. Also, an employer is not required to return a service member to the exact same position he or she left, if that position would have been subject to a termination, lay-off or pay-cut regardless of whether the service member left for duty or not.
Additionally, discrimination against employees on the basis of past, current, or intended military service is prohibited. As with other types of discrimination, this applies to hiring and firing decisions; compensation and benefits; and other employment decisions. For instance, National Guard member "Joe" has the most seniority in his department but a much less-qualified coworker is promoted because the manager fears Joe may be called into active duty soon. This could lead to a military discrimination complaint, as would an employer’s refusal to hire a newly recruited service member because of her need to take leave for basic training.
Other USERRA rights include uninterrupted health care coverage for up to 30 days and a continuation of pension plans (vesting, accrual of benefits, etc.) for the duration of any uniformed service obligation. Service members performing service for more than 30 days may continue coverage by paying an additional portion of the monthly premium.
Bottom line – if you’re facing a conflict between your civilian job and your military service obligations, don’t quit your job and expect to get it back. Instead, provide your employer with reasonable notice and a copy of your orders and you’ll be protected by USERRA. See the Department of Labor's eLaws USERRA Advisor and A Guide to the Uniformed Services Employment and Reemployment Rights Act for more details. Remember, especially for service members in the National Guard in state status, additional employment protections may apply to you under state law.
Time Limits for Reemployment
Service members must return to work within a certain window of time in order to maintain their USERRA protections. That time period is based on the length of their service obligation, as described below:
- 30 or Fewer Days of Service - Beginning of first work period after completion of active duty, plus time to return home and an 8-hour rest period (or as soon as possible)
- 31 to 180 Days of Service - Employee must apply for reemployment within 14 days of completing active duty service (or as soon as possible)
- 181 or More Days of Service - Employee must apply for reemployment within 90 days after active duty discharge (no exceptions)
- Injury or Illness Connected to Military Service - Individuals who are hospitalized or convalescing (such as recovering at home) must report to their employers within two years of active duty discharge and employers must make reasonable accommodations for any disability or impairment.
USERRA protects individuals who perform a duty in the "uniformed services," a category consisting of members of the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service Commissioned Corps. This includes members of the Reserves and the National Guard (when in federal status). "Uniformed service," meanwhile, is defined as active duty; active and inactive duty for training purposes; active duty training; or funeral honors by members of the reserves and National Guard.
Virtually all employees in both the private and public sector are covered by USERRA. The main exception is for pre-service positions that are "brief or non-recurrent and that cannot reasonably be expected to continue indefinitely or for a significant period."
How to File a Military Employment Discrimination Claim
Veterans' Employment and Training Service
U.S. Department of Labor
ATTENTION: Form 1010
61 Forsyth Street, S.W., Room 6T85
Atlanta, Georgia 30303
Fax: (404) 562-2313
The DOL's Instructions for Veterans' Preference Claims has a step-by-step guide to the claims process. Call your nearest Veterans' Employment and Training Service (VETS) representative if you have specific questions regarding your military employment discrimination claim. You can also speak with a military legal assistance attorney or a civilian attorney that specializes in military law and benefits.
Administrative remedies include a return to your job, back pay, payment of lost benefits, retroactive seniority; and other actions.
For Employers: USERRA Compliance
While it is up to service members to report for reemployment within the appropriate deadlines, employers are required to provide notice of USERRA to employees where other such notices are typically displayed. Downloading the official notice -- Your Rights Under USERRA (PDF) -- is normally sufficient.
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Contact a qualified military law attorney to help you with military-related issues.