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New York Veteran Employee Rights Attorneys


Battling for Veterans in the Workplace:

Understanding USERRA

Many of the costs of preserving our freedom and way of life are borne by the men and women who serve in the armed forces. Military service members not only risk life and limb, they forego other more intangible benefits like time with family and friends. Service also involves a large financial component, because it can significantly disrupt or even derail civilian careers. Those in the Reserve forces often leave higher paying jobs when called to serve. Fortunately, veteran employee laws protect veterans in the workplace.

The Uniformed Services Employment and Reemployment Rights Act, or USERRA, provides workplace protections for service members and veterans. If your rights have been violated, a New York employment lawyer can help.

The History of Veterans Rights

What rights do veteran employees have in the workplace? In 1932, during the Depression, thousands of unemployed veterans of World War I marched on Washington, demanding assistance from the government. General Douglas MacArthur, then U.S. Army Chief of Staff, led Army troops to chase them away.

Seven years later war broke out in Europe and Congress enacted the nation’s first peacetime draft, the Selective Training and Service Act. Around the same time, Congress enacted the Veterans’ Reemployment Rights Act (VRRA), which provided reemployment rights to the young men who left behind federal and private sector jobs to fight in World War II. Congress ended the draft in 1973, but the VRRA continued.

In 1994, President Clinton signed the Uniformed Services Employment and Reemployment Rights Act, or USERRA, into law. USERRA (38 U.S.C. § 4301-4335) is a more comprehensive version of the VRRA. The statute grew in importance after the attacks on 9/11 when many reservists were called to serve in Iraq and Afghanistan and had to leave civilian jobs.

USERRA Protections

USERRA offers a comprehensive array of protections for a broad category of service members working for a wide range of employers, including veteran employees. It is important for service members to know their rights under the USERRA.

The statute applies to most employers, no matter how small, even those with only one employee. USERRA covers private and public employers, including government employers at the federal, state, and local level, foreign employers operating in the United States, and U.S. companies operating abroad.

The only exceptions to USERRA are religious institutions, Indian tribes, embassies and consulates in the United States, and international organizations like the United Nations.

USERRA applies to all service members in every military branch: the Army, Navy, Marine Corps, Air Force, Coast Guard, Public Health Service, Reserve forces and the National Guard, and, since 2002, the National Disaster Medical System. It offers protections for veteran employees, those currently serving, and even those seeking to serve.

USERRA rights are not diminished because an employee holds an at-will, temporary, part-time, probationary, or seasonal position. USERRA even applies to paid interns. In less permanent employment situations, however, employers may be able to argue that there was no reasonable expectation that the employment would have continued throughout the period of service.

Unpaid interns, volunteers, independent contractors, and partners are not covered by USERRA. However, employers frequently misclassify workers as interns or independent contractors when they are actually employees and thus covered by USERRA.

Reemployment Rights

According to the Department of Labor, the main purpose of USERRA is to protect reemployment rights for active and reserve military members called to active duty. Service members are entitled to return to the position they would have obtained had they remained actively employed. This is called the “escalator” principle.

The escalator principle applies not only to an employee’s position but also to their pay, benefits, seniority, duties, job location, schedule, or any other employment benefit. Once the service member returns, their service time applies toward seniority and pension calculations.

Courts have taken a generous view of USERRA. In Serricchio v. Wachovia Securities, 658 F.3d 169 (2011), the Second Circuit Court of Appeals concluded that the employer had to pay a returning reservist a salary equivalent to his prior commission earnings until he could rebuild his book of business after being called away for active duty for two years.

USERRA also requires that the employer make reasonable efforts to train or retrain returning employees so that they qualify for any advanced position they are entitled to fill. Once the service member is reemployed, he or she cannot be fired except for cause for a period of time determined by length of service, even if the employment is at-will.

If the employee returns with a service-connected disability, the employer is required to make reasonable efforts to return the employee to the same position or train them for a more suitable close approximation of the former position.

Reemployment Requirements

The service member or veteran employee must meet these five requirements in order to qualify for reemployment under the USERRA:

  1. The service member must have left a civilian job for the purpose of performing voluntary or involuntary uniformed service;
  2. The employer must receive advance oral or written notice (the law does not specify how far in advance);
  3. The service member must not exceeded the cumulative five-year limit on the duration of the period of service while working for that employer;
  4. The service member must have been honorably discharged from the period of service; AND
  5. The service member must make a timely application for reemployment.

Other Veteran Employee Protections

While the focus of USERRA is reemployment, the law also protects service members at every point of their employment relationship.

For example, employers cannot make negative hiring decisions based on military service such as Reserve weekends, the possibility of deployment, or general disapproval of the conflict that gave rise to the service.

Similarly, employers cannot use service and its requirements as a reason not to offer promotions or any other benefit. Employers must also allow the necessary time off to take the exam to determine fitness for military service, even if the employee is ultimately found unfit for military service.

Employees cannot be terminated for any aspect of their service, and they can bring claims for harassment or a hostile work environment.

Filing a Claim

USERRA makes it easy for service members to pursue claims. Members of the Reserves or National Guard can contact the Employer Support of the Guard & Reserve, a Department of Defense organization established in 1972, which will contact the employer and negotiate with them directly.

Service members can also file a complaint directly with the Veterans Employment and Training Service (VETS) via the Department of Justice website. VETS will investigate the claim and contact the employer. Unfortunately, VETS has no enforcement power, and employers do not have to comply with any recommended solutions.

If negotiations break down, the service member can request that the claim be sent to the Attorney General (for private or state and local government employees) or to the Office of Special Counsel (for federal employees). The Attorney General will file suit in the appropriate federal or state court, and the OSC will initiate a case on your behalf before the Merit Systems Protection Board (MSPB). The downside is that these offices only accept a small number of the many cases that are filed.

USERRA also gives every service member the right to a jury trial of their claims. Service members can retain a private attorney and go directly to court or the MPSB, with or without first filing through VETS. The majority of USERRA claimants go this route.

The only possible barrier to bringing a claim in court is if the employee signed an agreement mandating arbitration of their employment claims. The Ninth Circuit recently recognized this restriction in Ziober v. BLB Resources Inc., 839 F.3d 814 (2016). Currently, there are efforts in Congress to enact an amendment making forced arbitration agreements unenforceable in USERRA cases.

USERRA also waives court filing fees and removes any statute of limitations for bringing such claims.

USERRA Remedies

If the veteran employee is successful, he or she can receive their job back and recover back pay, lost benefits, and a correction of their personnel files.

They may also be awarded lost promotional opportunities, retroactive seniority, pension adjustments, and restored vacation time. The law also provides for double damages in cases of willful violations and provides for the repayment of attorney’s fees and costs for successful service members.

USERRA preempts any state law that is less protective of the employment and reemployment rights of service people. Many states, including New York, have enacted versions of USERRA that are even more protective.

In New York, state law prohibits employers from firing reemployed service members for one full year, except for cause. State employees are eligible for paid leave while absent from work as a result of ordered military duty. New York also grants damages for pain and suffering due to egregious discrimination. A New York employment lawyer can help protect your veteran employee rights.

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