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When a United States service member is called to duty, they heed that call — no matter what’s going on at home. That means that sometimes, they have to leave family behind and leave their job behind. But what about when they come back? Will their job still be there?
By law, it should be.
What is USERRA?
USERRA protects military service members in a number of ways: It ensures they’re reemployed after returning from duty, prevents career disadvantages linked to the military, and forbids employment discrimination based on their service. (USERRA stands for the Uniformed Services Employment and Reemployment Rights Act of 1994.)
Whether a member leaves a job by choice or involuntarily, USERRA ensures job security when they return and protects from anti-military bias on part of the employer.
Under USERRA, it is also illegal for an employer to discriminate against current, past, or future service members when it comes to being hired. Also forbidden is discrimination against service member employees regarding promotion, benefits, or other workplace advantages.
The time the employee spends performing military duty should be considered the same as a leave of absence or furlough from their position.
Who Is Protected Under USERRA?
Anyone who has trained and/or served in the military falls under USERRA protections, whether they did so in a time of war or peace, voluntarily or involuntarily. This includes National Guard and Reserve members, those who serve in the National Disaster Medical System and the Public Health Service Commissioned Corps, and active parts of the armed forces.
All public, private, and government employers must adhere to USERRA, regardless of the company’s size; it also applies to American companies that work in foreign countries and vice versa, provided it does not violate the laws of said foreign country.
USERRA does not protect independent contractor positions.
How Do I Get Back to Work After Serving?
There are certain criteria you need to meet to get rehired at your former place of employment under USERRA.
- Giving the employer advance notice of military status
- No more than five years serving in the military since employed ([some exemptions apply](https://www.esgr.mil/USERRA/Frequently-Asked-Questions))
- Returning to the workplace within a timely manner
- A regular honorable discharge or end of service
If you have a pension, USERRA ensures that it is not interrupted: It resumes upon reemployment as though there were no time away. USERRA also protects against wrongful discharge, or firing, from the workplace due to one's time in the Army or Army Reserve.
What If My Employer Retaliates Against Me?
Workplace retaliation is illegal. It can take many forms.
- Keeping you from promotions due to your service
- Excluding you from regularly scheduled promotions
- Changing your job duties while you’re serving
- Firing you because of your military obligation/time serving
If you’re facing retaliation or discrimination on the basis of your service — also known as military discrimination — the Employer Support of the Guard and Reserve (ESGR) is designed to resolve employment issues for current and former service members. For a formal investigation, the worker must contact the U.S. Department of Labor, which will work to hold the employer accountable and follow the law.
As that process is underway, it’s advisable to retain a lawyer to make sure you are fully compensated for any unreceived benefits, raises, or time spent unpaid in litigation or during a job search.