Employment Discrimination Based on Military Status or Service

The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted to prevent adverse actions against 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.  USERRA seeks 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 employment and benefits. 

USERRA covers both voluntary and involuntary service members.  You do not have to be actively deployed for military duty to be covered under USERRA.  The Act also covers those persons in uniformed service training programs and periods of time during which medical or technical exams are being administered.    

Under USERRA, an employer may not deny initial employment, re-employment, promotions, or other benefits of employment because a person is a member of the uniformed services.  USERRA also protects a service member’s right to re-employment upon his or her return from military service.  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.  Upon reemployment, the employee will be returned to a position which may not have been the previously held position but which must be comparable to that which the employee would have held if continuously employed with the employer.  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.

Upon deployment, service members may choose to continue their employer-sponsored health insurance for up to 24 months. However, the law requires service members to notify their employers in advance if they are going to leave for duty, unless giving notice is not possible or reasonable under the circumstances.

Some examples of military status discrimination are:

1. You are not hired, denied a promotion, demoted, or fired because of your military service.
2. Your co-workers who have not served in the military are treated better than you are, including receiving more promotions, better benefits, and additional job opportunities.
3. 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.
4. 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 do them with a little bit of help.
5. Your boss or co-workers make fun of you or treat you badly because you are an active or retired member of the military.

Nichols Kaster & Anderson, PLLP has litigation experience in many types of cases, including military status discrimination. If you think you may become involved in litigation with your employer, feel free to contact us.