Military service members and veterans face unique workplace challenges that most employees never encounter. From deployment-related job absences to employer bias against military service, those who serve our country often find their civilian careers complicated by their military obligations.
You have specific legal protections that go far beyond standard employment law. The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides comprehensive safeguards for your job security, benefits, and advancement opportunities. Understanding these rights can mean the difference between career advancement and workplace discrimination.
Disclaimer: This article provides general information for informational purposes only and should not be considered a substitute for legal advice. It is essential to consult with an experienced employment lawyer at our law firm to discuss the specific facts of your case and understand your legal rights and options. This information does not create an attorney-client relationship.
Understanding USERRA: Your Foundation of Protection
USERRA protects nearly all employees who serve in the uniformed services, including active duty, National Guard, and Reserve members. This federal law applies whether you’re called to active duty, attending military training, or participating in fitness-for-duty examinations.
The law covers five main areas: protection from discrimination, reemployment rights, benefit continuation, advancement opportunities, and protection from retaliation. These protections apply regardless of whether your military service is voluntary or involuntary.
Who Is Protected Under USERRA
USERRA protections extend to all uniformed services, including:
- Army, Navy, Air Force, Marines, and Space Force
- Army and Air National Guard
- Army, Navy, Air Force, Marine, and Coast Guard Reserves
- Commissioned Corps of the Public Health Service
- Any other category designated by the President during war or national emergency
The law protects both current service members and veterans. Your civilian employer cannot discriminate against you for past, current, or future military service.
Key Employment Protections for Service Members
Your military service creates several specific workplace rights that employers must respect. These protections ensure that military obligations don’t derail your civilian career prospects.
Protection from Military Status Discrimination
Employers cannot make hiring, firing, promotion, or other employment decisions based on your military service. This includes discrimination against spouses of service members or employees who have military obligations.
Common examples of prohibited discrimination include:
- Refusing to hire veterans
- Passing over Guard or Reserve members for promotion due to potential deployment
- Creating hostile work environments through anti-military comments
- Retaliating against employees who assert USERRA rights
Reemployment Rights After Military Service
When you return from military service, you have the right to be reemployed in the position you would have attained if you had remained continuously employed. This “escalator principle” means you shouldn’t lose advancement opportunities due to military service.
Your reemployment rights depend on the length of your military service:
Service of 90 days or less: You must report to work at the beginning of the first regularly scheduled work period on the first calendar day following completion of service, plus eight hours for commute time.
Service of 91 days or more: You must submit an application for reemployment no later than 90 days after completion of service.
Your employer cannot require you to use vacation time or other paid leave for military service. However, you can choose to use accrued vacation time if you prefer to receive pay during your absence.
Military Leave Entitlements
USERRA provides up to five years of cumulative military leave per employer, with several important exceptions that don’t count against this limit:
- Service during declared wars or national emergencies
- Service under orders specifying periods longer than five years
- Service to fulfill training requirements determined by the uniformed service
- Involuntary service extended due to war, national emergency, or military requirements
Your employer must continue your health insurance coverage during military leave for up to 24 months. You can choose to pay the employee portion of premiums, or if you don’t, your employer must allow you to reinstate coverage upon reemployment without waiting periods or exclusions.
Specific Protections for Different Service Components
Different types of military service create varying workplace considerations. Understanding how USERRA applies to your specific situation helps you protect your rights effectively.
National Guard and Reserve Members
Guard and Reserve members face unique challenges because their civilian employers must accommodate both scheduled training and unexpected activations. Your employer cannot penalize you for missing work due to:
- Monthly drill weekends
- Annual training periods
- Emergency activations for natural disasters
- Federal activations for overseas deployments
Employers often struggle with the unpredictability of Guard and Reserve duties. However, USERRA requires them to accommodate your military obligations regardless of the inconvenience to business operations.
Active Duty Personnel Transitioning to Civilian Employment
When transitioning from active duty to civilian employment, you have specific protections during the job search process. Employers cannot discriminate against you for being a veteran or having gaps in employment due to military service.
Veterans’ preference laws provide additional advantages in federal employment and many state and local government positions. These laws give qualified veterans priority in hiring and protection against layoffs.
Military Spouses
While USERRA doesn’t directly protect military spouses, other laws provide important employment protections. The Military Spouse Employment Partnership helps address licensing and career challenges that arise from frequent relocations.
Many states have enacted military spouse licensing recognition laws that expedite professional license transfers. These laws acknowledge the unique challenges military families face when relocating frequently due to permanent change of station orders.
Common Workplace Challenges and Legal Solutions
Service members frequently encounter specific workplace situations that require legal intervention. Recognizing these patterns helps you identify when your rights are being violated.
Deployment-Related Employment Issues
Extended deployments create the most complex USERRA situations. Employers sometimes assume that deployed employees are unavailable for promotion consideration or important projects. This assumption violates the escalator principle of reemployment rights.
When you return from deployment, your employer must place you in the position you would have attained with reasonable certainty if you had remained continuously employed. This includes promotions, raises, and advancement opportunities you would have received.
Training and Education Opportunities
Employers cannot exclude you from training programs, educational opportunities, or professional development because of your military obligations. Missing training due to military service doesn’t disqualify you from advancement opportunities.
Your employer must provide equivalent training upon your return or place you in positions that don’t require the missed training. The goal is to ensure that military service doesn’t create permanent career disadvantages.
Performance Evaluations and Military Service
Employers sometimes penalize service members in performance evaluations for absences related to military duty. This practice violates USERRA’s anti-discrimination provisions.
Performance evaluations must focus on actual job performance during periods when you were present and available for work. Military-related absences cannot be counted against you, even if they affect team productivity or project completion.
Service-Connected Disabilities and Workplace Accommodations
Veterans with service-connected disabilities have additional protection under the Americans with Disabilities Act (ADA). These protections work alongside USERRA to provide comprehensive workplace rights.
Understanding Your Accommodation Rights
If you have a service-connected disability, your employer must provide reasonable accommodations that enable you to perform essential job functions. Common accommodations include:
- Modified work schedules for medical appointments
- Ergonomic equipment for physical limitations
- Quiet workspaces for employees with PTSD or anxiety
- Flexible break schedules for medication management
Your VA disability rating doesn’t automatically qualify you for workplace accommodations. The ADA requires a separate analysis of how your condition affects your ability to perform job functions.
Interaction Between VA Benefits and Employment
Receiving VA disability compensation doesn’t prevent you from working or affect your USERRA protections. However, some veterans worry that working while receiving VA benefits might affect their disability ratings.
VA disability compensation is based on the severity of your service-connected conditions, not your ability to work. Working actually demonstrates your effort to overcome disability-related challenges and shouldn’t negatively impact your VA benefits.
Filing Complaints and Seeking Legal Remedies
When employers violate your USERRA rights, you have multiple options for seeking relief. Understanding the complaint process helps you choose the most effective approach for your situation.
Department of Labor Investigation Process
The Department of Labor’s Veterans’ Employment and Training Service (VETS) investigates USERRA complaints at no cost to you. This process often resolves violations without formal litigation.
VETS investigators will:
- Interview you and relevant witnesses
- Review employment records and policies
- Attempt to negotiate a resolution with your employer
- Issue findings and recommendations
Most USERRA violations resolve during the VETS investigation process. Employers often prefer to settle rather than face potential litigation with the Department of Justice representation.
Legal Remedies Available
Successful USERRA claims can result in comprehensive remedies including:
- Reinstatement to the appropriate position
- Back pay and benefits
- Compensation for lost wages and benefits
- Liquidated damages for willful violations
- Attorney fees and court costs
The escalator principle ensures that remedies place you in the position you would have occupied without the violation. This forward-looking approach distinguishes USERRA from many other employment laws.
Recent Legal Developments Affecting Service Members
USERRA continues to evolve through court decisions and regulatory updates. Staying informed about these changes helps you understand the current scope of your protections.
Expanding Definitions of Military Service
Recent court decisions have clarified that USERRA protections extend to activities beyond traditional drill and deployment. For example, participation in military funeral honors and certain voluntary training programs now receives protection.
The Department of Labor has also expanded guidance on what constitutes “military service” under USERRA. This broader interpretation strengthens protections for Guard and Reserve members who participate in community outreach and disaster response activities.
Technology and Remote Work Considerations
The rise of remote work has created new applications for USERRA protections. Service members can now potentially fulfill civilian job duties from military installations during certain types of military service.
Courts are beginning to address how USERRA applies when employees can work remotely during military training or limited duty assignments. These developments may reduce the career impact of military obligations for some service members.
Protecting Your Rights: Practical Steps
Taking proactive steps to document your military service and employment situation helps protect your USERRA rights. This preparation becomes crucial if violations occur.
Documentation Best Practices
Maintain comprehensive records of:
- Military orders and service dates
- Communications with your employer about military service
- Performance evaluations and advancement opportunities
- Pay stubs and benefit statements
- Any adverse employment actions
Provide your employer with as much advance notice as possible about military service. While USERRA doesn’t require specific advance notice, prompt communication demonstrates good faith and may prevent misunderstandings.
Communication Strategies
When discussing military obligations with your employer, focus on your commitment to both your military service and civilian career. Emphasize your value as an employee and your intention to fulfill all responsibilities.
Address concerns about your military schedule proactively. Offer to help your employer plan for your absences and identify ways to minimize disruption to business operations.
When to Seek Legal Assistance
Certain situations require immediate legal intervention to protect your USERRA rights. Recognizing these red flags helps you respond effectively before violations become entrenched.
Consult with an employment attorney if you experience:
- Threats of termination related to military service
- Denial of reemployment after military leave
- Exclusion from advancement opportunities due to military obligations
- Hostile comments or treatment based on military service
- Retaliation for asserting USERRA rights
Early legal intervention often prevents violations from escalating and preserves more remedy options. Many USERRA cases resolve favorably when attorneys become involved during the early stages of disputes.
Conclusion: Your Military Service Is a Protected Asset
Your military service represents a valuable asset that should enhance, not hinder, your civilian career. USERRA provides robust protections that enable you to serve your country while building long-term career success.
Understanding these rights empowers you to address violations confidently and hold employers accountable for discriminatory treatment. The law recognizes that military service members deserve respect and equal treatment in the civilian workplace.
If you’re experiencing workplace discrimination related to your military service, don’t let violations continue unchallenged. Document the situation, understand your rights, and consider seeking legal assistance to protect your career interests.
At Nisar Law, we understand the unique challenges facing service members in the civilian workplace. Contact us for a consultation to discuss how we can help protect your employment rights and ensure you receive the respect and opportunities you’ve earned through your military service.
