Questions about USERRA

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What Employers are Covered by USERRA?

It is helpful to understand what employers are covered by USERRA. Generally speaking, USERRA broadly covers employers, which the Act defines as “any person, institution, organization or other entity that pays salary or wages for work performed or that has control over employment.” USERRA also applies to individuals who have been delegated “the performance of employment-related responsibilities.” USERRA covers both private-sector and public-sector employers, including governmental bodies on the federal and state levels. Unlike most other employment-related statutes that apply only to employers with a certain number of employees or those employers that generate a certain level of revenue, USERRA applies to all employers without regard to the number of employees or the amount of revenue generated.

What Employees Receive USERRA Protection?

USERRA defines a covered “employee” as “any person employed by an employer,” and the “uniformed services” are construed to include the United States Armed Forces – Army, Navy, Air Force, Marine Corps, and Coast Guard – and the Army National Guard, the Air National Guard, and the commissioned corps of the Public Health Service. Given that virtually every employer is covered by USERRA, it stands to reason that every uniformed service employee of an American company or a company incorporated in America is covered by the Act. This definition of “employee” is not limited to U.S. citizens, and it also applies to nationals and permanent resident aliens. The Act’s far reach covers employees working for an American company that is located in another country.

What Does USERRA Protect?

  1. Re-employment Upon Return

    The first statutory protection under USERRA – guaranteeing re-employment for veterans upon return from military service or uniformed services – is available so long as four conditions are met:
    1. The employee veteran must provide advance notice to their employer that they will be entering armed forces service;
    2. The employee veteran has served five or years less cumulatively in the armed forces while employed with the present employer;
    3. The employee veteran seeks to return to work within a reasonable time after conclusion of military duty;
    4. The employee veteran was not discharged under dishonorable or other than honorable conditions.

    When these four conditions are satisfied, employee veterans are entitled to reemployment or reinstatement to their former position, with the same status, and on the terms that would have existed had the military leave never occurred. In the event the veteran employee’s former position is no longer available, the employer will be required to offer a comparable position.

  2. Health Insurance Guarantee

    USERRA also offers a second important guarantee for eligible employee veterans and their dependents: the option to continue health insurance coverage for up to 24 months while the employee serves in the military. In the event eligible employee veterans do not opt to continue health insurance coverage, those employee veterans will still be able to re-enroll on their employer’s health care plan. In addition, the employee veterans may not have to wait for normal enrollment periods or face many exclusions due to pre-existing conditions, though any conditions due to an employees’ military service will be excluded.

  3. Freedom From Discrimination and Retaliation

    Third, and perhaps most importantly, USERRA insulates prospective and returning uniformed service veterans from discrimination in the form of adverse employment actions and retaliation. For purposes of this antidiscrimination feature, USERRA’s protections cover any employee who served or who presently serves as a member of the uniformed services, any employee who has applied to serve in the uniformed services, or any employee who has a duty to serve in the uniformed services. Individuals who meet these criteria are entitled to protection from employment discrimination decisions, including protection from discrimination in initial hiring decisions, in reemployment upon completion of service, in retention in employment, in promotion, or in the provision of any employment benefit. Employment “benefits,” in turn, broadly encompass “the terms, conditions, or privileges of employment, including any advantage, profit, privilege, gain, status, account, or interest.” Similar to most anti-discrimination statutes, USERRA also forbids employers from retaliating against any employee for exercising any rights under the employment statute. This prohibits employers from retaliating against employees who seek to enforce their rights, assist another exercise their USERRA rights, testify or make a statement in connection to a USERRA proceeding, or assist or participate in an investigation of USERRA violations. Framed this way, USERRA not only protects employees who are service members, it protects any employees who take action to assist another employee avail themselves of USERRA’s protections.

What are remedies for USERRA Violations?

Damages for USERRA violations can be severe. First and foremost, USERRA grants judges wide authority to ensure the offending employer complies with the law. This typically allows a court to order reinstatement, grant injunctions, restraining orders, or contempt orders, or award other appropriate equitable relief as a remedy. Second, USERRA requires the employer to compensate the employee for any lost wages or benefits due to the employer’s failure to follow the law. Third, if the employer’s violation of USERRA was willful – such as if the employer either knew or showed reckless disregard for whether its conduct was prohibited by the Act – the Court can require the employer to pay a liquidated damages award under USERRA, which is an amount equal to the lost wages and benefits. Fourth, prevailing plaintiffs in USERRA actions are entitled to an award of reasonable attorneys fees, expert witness fees, litigation expenses, and court costs.

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