USERRA – Protecting our Protectors

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is designed to help protect U.S. military personnel from discrimination that they may face in returning to their jobs. The law ensures that they:

1. are not disadvantaged in their workplaces because of their service;
2. are quickly reemployed and restored to their former jobs on their return; and
3. are not discriminated against due to any past, present, or future military service.

A recent USERRA case stated that the defendant “must prove, by a preponderance of the evidence, that it would have terminated [the plaintiff] even if he was not a military service member.” Blais v. BRIDGEWELL, INC., Dist. Court, D. Massachusetts (2012).

Thanks to this act, as long as someone has been in service for at least 91 days, and has not become unable to perform his or her duties, that person is to be restored to the former job upon return. If an employer hires two or more people to a position, who leave for the same reason, “the person who left the position first shall have the [first] right to reemployment in that position.”

According to the national archives, “USERRA supersedes any State law (including any local law or ordinance), […] or other matter that reduces, limits, or eliminates […] any right or benefit provided by USERRA.”

USERRA is not without flaws. It was improved with the Veterans Benefits Improvement Act of 2004 which states that employers are required to provide notice to employees and employers of their rights, benefits, and obligations under USERRA. The U.S. Department of Labor created a USERRA poster that was meant to be posted at workplaces and there is an informal dispute resolution process. USERRA contains no statute of limitations, and it expressly forbids the application of state statutes of limitations, but delay is still not wise. There is a laches defens (unreasonable delay) but how viable it would be is in question.

The Service-members Access to Justice Act of 2008 (SAJA) was introduced in October of 2008, but didn’t pass. It has reappeared twice since, once in 2009, and again in May of 2012, where – at the time of writing this – it is currently pending. The purpose of the bill was to prohibit employers from requiring men and women in the service to give up their their USERRA rights in to get or keep a job and added minimum damages for willful violations and punitive damages for those committed with malice.