Jobs act protects service members

  • Published
  • By 1st Lt. Robert Driessen and 1st Lt. Shane Hartman
  • 60th Air Mobility Wing Staff Judge Advocate
TRAVIS AIR FORCE BASE, Calif. --  Since Sept. 11, 2001, the United States has experienced the largest deployment of reservists since World War II.

Our military relies more on our guard and Reservist members than at any point in recent history. Such service-members often leave behind stable, well-paying jobs to serve their country. The law recognizes that they shouldn't have to battle for a job when they return from their service.

Whether you are a Reservist or a National Guard member, it is important you understand the Uniformed Services Employment and Reemployment Rights Act. USERRA provides that an employer must grant service members a leave of absence to perform military service. They must also re-employ the member upon return with the same level of seniority and pay rate.

The employer cannot discriminate against you because of your military duty. This protection applies to employees who are full time, part time or probationary.

Who is covered by USERRA?

The act applies to people who perform duty, voluntarily or involuntarily, in the "uniformed services," which include the Army, Navy, Marine Corps, Air Force, Coast Guard and Public Health Service commissioned corps, as well as the reserve components of each of these services. Federal training or service in the Army National Guard and Air National Guard also give rise to rights under USERRA.

Uniformed service includes active duty, active duty for training, inactive duty training such as drills, initial active duty training and funeral honors duty performed by National Guard and reserve members, as well as the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty.

How does USERRA affect employers?

USERRA applies to almost all employers in the United States, including the federal government, the states, counties, cities, school districts, and other local government organizations, as well as private employers regardless of size.

USERRA even applies outside the United States to U.S. employers and to foreign employers that are owned and controlled by U.S. companies. Foreign-owned companies are subject to USERRA with respect to their operations in the United States.

USERRA also affords protection to re-employed service members relative to pension benefits. Military leave must be treated as service with the employer for pension vesting and benefit accrual purposes. The employer cannot treat them as if they had a break in service.

What do I need to do to be covered by USERRA?

In order to be eligible for USERRA protection, you must:

1. Ensure your employer receives advance written or oral notice of your military service.

2. Confirm that you have not exceeded five years of cumulative uniformed service while working at that particular employer.

3. Return to work or apply for re-employment in a timely manner after the conclusion of service.

4. Have not been separated from service with a disqualifying discharge or under other than honorable conditions.

What can you do if you think you have been discriminated against?

So, what to do if you are the victim of this type of discrimination because of your commitment to serve your country? USERRA provides a remedy for this type of discrimination. If you believe that you have been denied employment because of your military service, you can file a complaint online with the United States Department of Labor, Veterans Employment and Labor Service at https://vets1010.dol.gov.

The Department of Labor also performs investigations into other types of USERRA violations. Under USERRA, an employer cannot discriminate against you because of your military service when evaluating you for a promotion, calculating your eligibility for pension benefits, deciding whether to re-employ you after returning from military duty or when making a decision about whether to retain you for continued employment.

Employers are also bound under the statute to afford you the same level of seniority and amount of pay if you must return to employment after completing a term of military service. These rules apply to virtually all employers, including federal agencies, state and local governments, large corporations, and small businesses.

The best way to navigate your relationship between your civilian employer and your military duty obligation is to use common sense, politeness and professionalism. A firm grasp of your rights under USERRA does not hurt either. USERRA can sometimes be complicated - service members have to meet certain requirements to qualify for the protections that the law provides. The good news is service members don't have to face the complications of USERRA alone. Should you need additional information about your rights under USERRA, feel free to visit the legal office. Office hours are 8 a.m. to 10 a.m Tuesdays and Thursdays.