When an employee experiences unlawful discrimination or retaliation, multiple federal and/or state laws may apply in their case. For example, an employee denied reasonable accommodation for a disability that resulted from military service may file a complaint under the Americans with Disabilities Act (ADA) or the Uniformed Services Employment and Reemployment Act (USERRA). More often than not, however, USERRA is the most advantageous because it is stacked in favor of the employee.

What is USERRA?

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) guarantees that qualifying employees who leave work to serve will find their job waiting for them upon their return (38 U.S.C. §4312). They are further entitled to benefits and privileges commensurate with those they would have attained if service had not interrupted their employment (38 U.S.C. §4316).

USERRA also prohibits employers from discriminating in hiring, retaining, promoting, or conferring any other benefit of employment on the basis of an employee’s service (38 U.S.C. §4311). This includes past service, a service obligation, or an application to serve.

USERRA covers those in the uniformed services for periods of service—past, present, and future—such as:

• Active duty
• Active duty training
• Inactive duty training
• Full-time National Guard duty
• State active duty (14 days or longer)
• Assisting during a public health emergency or other national disaster
• Applying for service
• Service obligation
• Fitness-for-service examinations
• Funeral honors

USERRA also protects employees from retaliation who are not themselves servicemembers if they assist in a USERRA claim or investigation (38 U.S.C. §4311).

Whom Does USERRA Protect?

USERRA does not only cover the military. The uniformed servicemembers who benefit from USERRA include:

• Armed Forces (Army, Navy, Air Force, Marine Corps, and Coast Guard)
• Army National Guard
• Air National Guard
• Army Reserve, Naval Reserve, Air Force Reserve, Marine Corps Reserve, and Coast Guard Reserve
• National Oceanic and Atmospheric Administration officer corps
• National Urban Search and Rescue Response System members
• Federal Emergency Management Agency service personnel
• Any position the President designates during a national emergency

What distinguishes USERRA from other employment laws?

There are many federal and state Equal Employment Opportunity (EEO) laws on the books. But when it comes to the degree to which they favor the employee, not all laws are created equal. USERRA is a top-tier employment protection for those in the uniformed services.

Consider the following advantages of USERRA:

Universal Coverage

While most federal and state employment laws may only apply in limited circumstances, such as those employing a particular threshold of people, USERRA applies to virtually all employers. Employers must comply with USERRA whether they are private, public, state, or federal. And USERRA applies to employers of any size: unlike the ADA, for example, which only applies to employers with at least 15 employees.

Burden of Proof Favors Employees in Reemployment Cases

With most employment laws, the burden of proof often falls on the employee to prove unlawful discrimination or retaliation took place. This is not always the case with USERRA. For a USERRA claim of discrimination or retaliation (§4311), the employee must first show that their participation in USERRA-protected activity was more likely than not a motivating factor in some adverse action taken against them. But for a reemployment claim (§4312), the burden of proof is on the employer: the employer must prove that reemployment would be impossible or unreasonable in that case.

Statute of Limitations

There is no statute of limitations for USERRA. This differentiates it from most EEO laws which reinforce strict deadlines and limit the time employees have to file claims. For the best chance of success, however, employees should assert their USERRA rights within a reasonable timeframe. There may be USERRA cases in which a general four-year Federal statute of limitations does not apply, but it has been enforced in court before; e.g., Rogers v. City of San Antonio, (5th Cir. 2004).

Note: USERRA does not protect employees from discrimination that took place prior to the law’s enactment in 1994.

Escalator Principle for Benefits and Seniority

For the purposes of USERRA, time spent in qualifying service does not count as a break in employment. Upon return to employment, USERRA requires employers to grant employees any benefits and seniority the employee would have accrued had they not left to serve.

USERRA provides a benefits escalator. Unlike a staircase, an escalator keeps moving upward after you step off of it. Likewise, under USERRA, the benefits of employment keep accruing even after you step away to serve.

Example: You are an Army reservist who works for a security company in Houston, Texas. Company employees qualify for an additional week of PTO after two years’ continuous employment. Fourteen months after starting employment, you are deployed and don’t return for ten months (two years after you began your job). If you had not left to serve, you would have qualified for that additional week of PTO. Thanks to USERRA, even though you were actively working for only fourteen months, you are still entitled to the benefits of someone who had been actively working for a full two years.

Asserting Your Rights Under USERRA

Fear of employment instability presents a sizable barrier to entry for many would-be servicemembers. The U.S. government has prioritized ensuring that servicemembers do not face professional consequences due to their service. USERRA is highly protective of employees as a result: more so than most EEO laws.

For servicemembers who suffer unlawful discrimination or retaliation in employment, any number of federal and/or state laws may apply. However, not all employment protection laws are created equal. It is highly advised to speak with an attorney versed in employment law for your sector (federal, public, or private), your state, as well as military-specific protections like USERRA before plotting a course of action.

USERRA procedural requirements and standards of proof differ significantly from other federal or state employment statutes. Consulting with an attorney versed in both military matters and employment law can make all the difference. Tully Rinckey’s team of dedicated employment and military law attorneys are available to assist you today. Please call 8885294543 to schedule a consultation, or schedule a consultation online.

As Managing Partner of Tully Rinckey PLLC’s Houston office, Sean oversees all of the office’s operations while concentrating his practice on military law; routinely handling cases involving Article 15s, letters of reprimand, courts-martial and officer/enlisted separation proceedings. Sean also handles federal labor and employment law cases and security clearance representation. He is also a member of the National Security Lawyers Association (NSLA). He can be reached at (888) 617-0477 or at info@tullylegal.com.