Between the military actions in Iraq and Afghanistan, thousands of reservists and National Guard members are leaving jobs and families behind to serve their country. Upon return, after putting their lives on the line, many may experience discrimination in trying to reenter the workforce.
Just as Title VII protects millions of minorities and women in the workplace, the Uniformed Services Employment and Reemployment Rights Act (USERRA) protects military personnel and veterans from discrimination based on their military service. The USERRA prohibits employers from denying “initial employment, reemployment, retention in employment, promotion, or any benefit of employment to a person on the basis of a past, present, or future service obligation.” Essentially, employers may not take adverse employment action against employees who leave their jobs for military service or ask to have their positions (and their benefits) retained while they are away on service.
Congress passed the USERRA in 1994 after the Persian Gulf War to encourage citizens to enter military service, address the continuing need for reservists and National Guard members, and to minimize the disruption to employers and employees. It balances the needs of the military, which required more non-career service members, and the needs of employers, who required predictable service timetables for staffing purposes.
Is the law working?
For the most part, the law appears to be working. Charles Ciccolella, assistant secretary of veterans’ employment and training at the U.S. Department of Labor, reported that in 2008, unemployment among veterans returning from Iraq and Afghanistan was only 2.6 percent. The law also has an escalator provision which enables employees to be re-employed in a position that reflects what he or she would be in, if not for the time spent away for service. Still, when military members look for different, better paying jobs when they return, USERRA protects them.
The law also requires servicemembers to provide advance notice to their employers (either written or verbal) of upcoming deployment, unless giving notice is impossible, unreasonable or impractical, because of the specific duty. Military members must also submit timely applications for re-employment if necessary. Failure to do so may result in losing their protections under USERRA.
To prevail under USERRA, a terminated employee must show that his or her military membership was a motivating factor in the employer’s adverse employment decision. However, the employer may show that it based its actions on legitimate reasons, and that military service had no bearing on the employment decision. Plaintiffs who prevail are entitled money damages for lost wages and benefits. For willful violations, plaintiffs may also recover double the amount due as liquidated damages.