Protecting the Employment Rights of Those Who Serve
Service members who leave civilian employment to fulfill military obligations should not have to choose between their duty to their country and their livelihood. Federal law is clear on this point — employers are prohibited from discriminating against employees because of their military service, and returning service members have legally protected rights to reemployment, benefits continuation, and freedom from retaliation. Yet violations of these protections happen with troubling regularity, leaving veterans and reservists without jobs, benefits, and career opportunities they lawfully earned.
At Corrao & Robles Law, attorney Nelson Robles represents service members, veterans, and reservists whose employment rights have been violated under the Uniformed Services Employment and Reemployment Rights Act throughout the East Coast and in applicable federal matters. As a Judge Advocate General (JAG), he understands the demands that military service places on those who serve and the legal protections that exist to ensure that service does not come at the cost of a civilian career.
What Is USERRA?
The Uniformed Services Employment and Reemployment Rights Act — commonly known as USERRA — is a federal law enacted in 1994 that protects the civilian employment rights of individuals who serve or have served in the uniformed services. USERRA applies to virtually all employers, regardless of size, and covers all branches of the military including the National Guard and Reserve components.
USERRA’s protections are broad and meaningful. They cover reemployment rights following a period of military service, protection against discrimination based on military service or obligations, continuation of health insurance benefits during service, and protection from retaliation for asserting USERRA rights. These protections exist because Congress recognized that the men and women who answer the call to serve should not be penalized professionally for doing so.
Who Is Protected Under USERRA
USERRA covers a wide range of individuals connected to military service, including:
The law’s protections extend to full-time, part-time, temporary, and probationary employees, and they apply to private employers, state and local governments, and federal agencies alike.
Reemployment Rights Under USERRA
One of USERRA’s most important protections is the right to reemployment following a period of military service. When a service member returns from military duty and meets USERRA’s notice and timely return requirements, their employer is generally obligated to restore them to their prior position — or a comparable one — with the same seniority, pay, benefits, and status they would have attained had they never left for service.
This principle is sometimes described as the escalator principle — the idea that a returning service member steps back onto the employment escalator at the point where they would have been had their service not interrupted their civilian career. Employers cannot simply return a service member to their old position if that position would have been upgraded, promoted, or otherwise advanced during the period of absence.
Timelines for Reporting Back to Work
USERRA establishes specific timelines within which a returning service member must notify their employer and report back to work following military service. These timelines vary based on the length of the military absence, ranging from the next scheduled workday following a brief absence to up to ninety days after discharge for longer periods of service. Understanding and complying with these timelines is important to preserving reemployment rights.
Protection Against Discrimination and Retaliation
USERRA prohibits employers from discriminating against employees or applicants in hiring, promotion, termination, or any other term or condition of employment based on past, present, or future military service obligations. An employer cannot deny a promotion, reduce pay, assign inferior duties, or terminate an employee because of their military status or obligations — even if the employer views the employee’s military absences as an inconvenience or disruption to the workplace.
USERRA also protects employees from retaliation for exercising their rights under the law or assisting others in doing so. An employer who takes adverse action against an employee for filing a USERRA complaint, requesting reemployment, or asserting their rights in any other way may be liable for retaliation independent of any underlying discrimination claim.
Health Insurance Continuation Rights
Service members who leave civilian employment for military duty have the right to elect continued health insurance coverage for themselves and their dependents for up to twenty-four months under USERRA. Employers cannot terminate health insurance coverage solely because of a military absence, and returning service members have the right to immediate reinstatement of health coverage upon reemployment without waiting periods or exclusions for preexisting conditions that arose during the period of service.
Pension and Retirement Benefit Protections
USERRA also protects the pension and retirement benefit rights of returning service members. Employers must treat a period of military service as continuous service for purposes of pension plan vesting and benefit accrual. Upon reemployment, an employer may be required to make the pension contributions that would have been made had the employee remained continuously employed throughout their period of military service.
Remedies Available Under USERRA
When an employer violates USERRA, affected service members may be entitled to a range of remedies including:
USERRA claims can be pursued through the Department of Labor’s Veterans’ Employment and Training Service, the Office of Special Counsel for federal employees, or through civil litigation in federal court. Understanding which avenue is most appropriate for a given situation requires careful analysis of the specific circumstances and the relief being sought.
When to Speak With a USERRA Attorney
Contact an attorney as soon as possible if any of the following apply:
Work With Corrao & Robles Law
The employment protections that USERRA provides exist because military service demands sacrifice — and that sacrifice should not extend to a service member’s civilian career and livelihood. Attorney Nelson Robles understands both the demands of military service and the federal legal framework designed to protect those who answer the call, and he works to ensure that every client’s employment rights are fully enforced.
Corrao & Robles Law represents service members, veterans, and reservists whose USERRA rights have been violated throughout the East Coast and in applicable federal matters, and is prepared to discuss your situation in a confidential consultation.