Practice Areas

Employee Rights

Military Status Discrimination

The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits employers from taking adverse action—which includes denial of initial employment, re-employment, promotions, or other benefits—against members of the uniformed services because of their military service

The USERRA is meant to ensure that, upon their return from service, employees will be free from discrimination in their place of employment as well as be able to retain their prior employment and benefits. Generally, in order to qualify for reemployment, the cumulative length of the current and previous absences from the position with that employer must not exceed five years (subject to various exceptions, including service during emergencies, national security operations, and war). Once the uniformed services member returns home, he or she must seek reemployment within a specific period of time, which varies based on the length of the military service. Disabled veterans have up to two years from the completion of their service to return to their former jobs, and employers must make reasonable efforts to assist them with their job duties if necessary.

James H. Kaster

Employment Law Attorney
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Upon reemployment, the employer can place the employee in a position not previously held by that employee, so long as the new position is comparable to that which the employee would have held if he or she was continuously employed with the employer.

USERRA also protects service members’ rights to receive benefits while deployed. Upon deployment, service members may choose to continue their employer-sponsored health insurance for up to 24 months. However, service members must notify their employers in advance if they are going to leave for duty, unless giving notice is not possible or reasonable under the circumstances.

Who Is Protected by the USERRA?

The USERRA protects members of the “uniformed services,” including the Army, Navy, Air Force, Marine Corps, Army National Guard, Air National Guard, commissioned corps of the Public Health Service, and other persons designated by the President during times of war or national emergency. It covers both voluntary and involuntary service members. The Act also covers those persons in uniformed service training programs and the periods of time during which medical or technical exams are being administered. You do not have to be actively deployed for military duty to be covered under the USERRA.

Examples of Potential Military Status Discrimination:

  • You are not hired, or are denied a promotion, demoted, or fired because of your military service.
  • Your boss treats your co-workers, who have not served in the military, better than he or she treats you, including providing more promotions, better benefits, and additional job opportunities.
  • You have returned from active military duty, and your employer refuses to give your job back, or your employer rehires you for a different job with less pay, benefits, or seniority.
  • You were injured or disabled during your military service and your employer refuses to rehire you, or refuses to let you return to your former job duties, even though you can perform them with a little bit of help.
  • Your boss or co-workers make fun of you or treat you badly because you are an active or retired member of the military.

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