Each day, hundreds of thousands of members of the National Guard and Reserve Components of the U.S. Armed Forces go to work in civilian jobs all around the country. These individuals undergo training throughout the year and stand ready to assist in military operations around the world or local recovery following a natural disaster.
That status means that members of the Guard or Reserve must be ready and able to leave their civilian position on a temporary basis on short notice. Unfortunately, many employers view such absences as an inconvenience rather than an opportunity to help servicemembers serve their country.
As a result, employers are not always as willing as they should be to enable an employee to meet his or her military service obligations.
Fortunately, the law requires them to do so. Under federal law, it is illegal to discriminate against an employee or job applicant based on his or her membership in the armed forces. In addition, the same law provides members of the National Guard and Reserve with certain job protections when their military service affects civilian employment.
USERRA: Employment Protections for the Guard and Reserve
The federal law that establishes the employment rights and responsibilities of members of the National Guard and Reserve − and their employers − is called the Uniformed Services Employment and Reemployment Rights Act (USERRA).
Congress passed USERRA to encourage noncareer service in the military by eliminating the disadvantages to civilian careers and the disruption to employers, fellow employees, and communities that can result from such service.
The law does so by prohibiting discrimination in employment on the basis of military service and entitling those called away from work for military service to certain rights upon their return.
Employers May Not Discriminate on the Basis of Military Service
Specifically, employers are prohibited from denying a person initial employment, reemployment, retention in employment, promotion, or any benefit of employment just because that person is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in the military.
In addition, employers may not retaliate against a person who exercises his or her rights under the USERRA or participates in an investigation of violations of the law.
These protections apply to any position of employment, including temporary positions that may be excluded from the right to reemployment discussed below.
Employees’ Right to Reemployment Under the USERRA
In addition to its general non-discrimination provision, the USERRA requires an employer to promptly reemploy any person whose absence from employment was necessitated by reason of military service if the following conditions are satisfied:
- Advance notice. The person (or an appropriate officer of the military service in which the person will serve) provides advance written or oral notice of the need to serve to his or her employer. This notice may be excused in some circumstances.
- Absences less than 5 years. The cumulative length of the absence and any previous military absences from employment with the same employer does not exceed five years. Some exceptions apply to this five-year time limit.
- Time limits on reporting back. The person reports to, or submits an application for reemployment to, the employer within a certain period of time following the completion of service. The specific time period that applies depends on how long the person’s service lasted.
- Type of discharge. The person did not receive a dishonorable discharge, bad conduct discharge, or certain other types of separation or dismissal from military service.
If a person’s absence for military service lasted 90 days or less, the employer must generally give him or her back the position he or she would have had if the absence had not occurred. If the absence was longer than 90 days, the employer may instead reemploy the person in a different position of “like seniority, status and pay.”
In addition to the conditions listed above for reemployment eligibility, the USERRA also provides exceptions from that requirement. Those exceptions include:
- Changed circumstances. The employer’s circumstances have so changed as to make reemployment impossible or unreasonable;
- Undue hardship. In some circumstances relating to disability or lack of qualifications for a position, an employer may be excused from reemploying a person following military service if doing so would impose an undue hardship on the employer; and
- Temporary employment. The employment from which the person left was for a brief, nonrecurrent period, and there was no expectation that the employment would continue indefinitely or for a significant period.
Because employers may try to claim one of these exceptions even though it doesn’t apply, an employer trying to rely on one of these exceptions bears the burden of proving that it is entitled to do so.
Why You Need an Experienced Employment Lawyer on Your Side
If you feel your employer has not treated you fairly regarding a military service obligation, or if it has refused to reemploy you as required under the USERRA, it makes sense to talk with an experienced employment lawyer and find out what your legal options are.
At Zatuchni & Associates, we advise and take action on behalf of people who have suffered adverse employment consequences due to service in the National Guard or Reserve. Contact us today to learn more about how we can help. We serve clients in New Jersey and New York.
Contact our office to speak to an employee rights attorney about employment protections for military service.