Military Service

Members of our armed forces provide incredible sacrifice. They are giving of themselves, their families, and, sometimes, their lives. Yet, amazingly, some people do not have the needed respect for members of our military. IN fact, some employers actually discriminate or retaliate against their employees or applicants merely because they were or may be required to spend time away from work because of their service to our country. Laws such as The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) makes such discrimination or retaliation illegal.

“A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.”  38 U.S.C.S. § 4311

USERRA prevents employers from not hiring or re-hiring employees based on their obligation to a uniformed service. In addition, it makes it illegal to fail to promote, retain, or provide any benefit they would normally be entitled to. USERRA also prohibits employers from discriminating or taking any adverse employment action against any person because such person took part in required service duties.

An employer who is found liable under USERRA is required to pay lost wages and benefits in order to make an employee (or potential employee) whole. In addition, USERRA also provides for liquidated (or double) damages in an amount equal to lost wages and benefits---but only if the Court finds that the violations were willful, or done on purpose. If the court determines the employer’s failure to comply with the provisions of USERRA was willful. USERRA applies to virtually all employers, including the Federal Government.

It is important to note that a person whose military service lasted 1 to 90 days must be “promptly reemployed” in the job the person would have held had the person remained continuously employed, so long as the person is “qualified for the job or can become qualified after reasonable efforts by the employer to qualify the person.”  If an employee is unable to become qualified for the position, the employer must reemploy the person in a position that is the nearest approximation to the position they held which the person is able to perform, with full seniority.

If a person was in the service longer than 90 days, he or she must be re-employed in the job the person would have had OR a position of equal seniority and pay if the person is qualified or can be trained to be qualified in that equal position. In other words, the escalator principle requires that each returning service member actually step back onto the seniority escalator at the point the person would have occupied if the person had remained continuously employed rather than leaving for service duties.