Federal Reemployment Rights of Returning Military Personnel

October 1, 2007

Author: Peter Dellinger

Over 500,000 members of the National Guard and Reserve have been called up to military service following the attacks on September 11, 2001.  With the hope that many of these service members will soon be returning home from overseas missions, they will also be legally entitled to return to their old jobs.  Under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §4301 et seq., every employer, both public and private, must employ and reinstate members of the armed forces, regardless of the size of the company.

In addition to re-employment rights, veterans are entitled to far-reaching employee protections rarely found in the non-unionized private sector.  For instance, employers are required to reinstate employees to the position, pay and benefit level that they would have had if they had not left for active duty.  42 U.S.C. §§4312 and 4316.  In determining pay and benefits, each month served in military service counts as a month actively employed by the employer.

Even though the doctrine of “at will employment” allows New York employers to fire employees for virtually any reason, USERRA protects returning servicemen and women from being fired except for just cause for on year following their reinstatement.  38 U.S.C. §4316(c)(1).  The statute specially Supersedes any State law...contract, agreement, policy, plan or practice that reduces limits, or eliminates in any manner any right or benefit provided by this chapter…38 U.S.C. §4302(b). 

As a result, during the one year reinstatement period, USERRA covered employees may be exempt from their employer’s lay-offs, corporate downsizing, or other economically based job-elimination plans.  In Upstate New York where jobs may be scarce, an employer may be obligated to terminate a current employee in order to comply with a returning veteran’s re-employment rights under USERRA.

Employees with disabilities incurred or aggravated during military service have additional employment rights, after an employer has unsuccessfully attempted reasonable accommodation efforts.  38 U.S.C. §4313(a)(3).  These employees are entitled to employment in “any other position” which is the “equivalent” or “nearest approximation”, “in seniority, status, and pay, the duties of which the person is qualified to perform, or would be qualified with reasonable efforts by the employer.”  Id.

Employees are required to claim their re-employment rights by giving their employer notice of intent to return to work.  Upon return, military personnel who have severed more than six months of active duty have 90 days to notify their employer that they intend to reclaim their old job.

USERRA includes comprehensive and generous enforcement rights.  In addition to filing an administrative complaint with the Secretary of Veteran’s Affairs, 38 U.S.C. §4322, affected employees may sue employers for USERRA violations in federal court, and are exempt from paying filing fees or court costs.  38 U.S.C. §§4323(c)(2) and (h)(1).  Remedies for employer violations include lost wages; an equal amount in liquidated damages for willful violations, 38 U.S.C. §4323(d); injunctive relief, 38 U.S.C. §4323(e); attorney’s fees, expert witness fees, as well as “other litigation expenses.”  38 U.S.C. §4323(h)(2).