Did you know that failing to comply with military employment laws, including Individual Liability Under USERRA, could put both your business and individual managers at risk?
The Uniformed Services Employment and Reemployment Rights Act (USERRA) is one such law that often flies under the radar—until a violation occurs.
Whether you’re a business owner, HR professional, or team leader, understanding USERRA is crucial for avoiding legal pitfalls and, more importantly, supporting our nation’s service members. Let’s explore what USERRA is, its key provisions, and how individual liability comes into play.
What is USERRA?
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a federal law that safeguards the employment and reemployment rights of individuals serving in the U.S. military. Here are the fundamentals:
1. Protection Against Discrimination:
USERRA makes it illegal to discriminate against individuals because of their military service. For example, an employer cannot deny a promotion, refuse to hire, or terminate someone solely because they are part of the uniformed services.
2. Reemployment Rights:
Service members have the right to be reemployed in their civilian jobs after completing military service, provided they meet certain conditions. This includes being reinstated to their original job or a comparable position with equivalent seniority, status, and pay.
3. Applicability Across Employers:
Unlike some employment laws that only apply to large organizations, USERRA applies universally—to public and private employers of all sizes. This includes government agencies, schools, and small businesses.
4. Broad Coverage:
USERRA goes beyond other employment protections like the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), offering a robust shield for service members.
5. Health Benefits:
Employers must continue health insurance coverage for employees on military leave for up to 24 months, ensuring uninterrupted access to care.
This is everything a military officer can receive for his or her military service according to the federal district court, depending on their period of service. In some cases, other employment law statues if the individuals perform military service.
Key Provisions of USERRA:
USERRA grants more than just rights in the civilian workplace or that of a police officer. However, it’s necessary to understand the specifics. Remember, USERRA has specific requirements for both employees and employers. Let’s break it down:
Responsibilities of Employees
1. Advance Notice:
Service members must notify their employers—either verbally or in writing—before taking leave for military duties. This helps businesses plan for their absence while respecting their service obligations.
2. Time Limits on Service:
USERRA protections are available if the employee’s cumulative service with the same employer does not exceed five years. This limit ensures a balance between military and civilian obligations.
3. Returning to Work:
After completing their service, employees must return to their civilian jobs or formally request reemployment within a specified period. The timeline depends on the duration of their service:
- 1-30 days: Return by the first scheduled workday after a safe travel period and eight hours of rest.
- 31-180 days: Apply for reemployment within 14 days.
- 181+ days: Apply for reemployment within 90 days.
Obligations of Employers
1. Health Coverage Continuity:
- For military leaves under 31 days, health care benefits must continue as if the employee were actively working.
- For leaves lasting longer, employees can opt to maintain health insurance for up to 24 months, with the employer subsidizing costs as required.
2. No Disqualifying Discharge:
Reemployment rights apply only if the service member was not discharged under dishonorable or disqualifying conditions.
3. Reinstatement with Seniority:
Employers must reinstate employees to a position with the same seniority, benefits, and pay they would have earned if they had never left for military duty.
Most alleged USERRA violations make the individual personally liable for the action taken by the relevant authorities. For instance, Generally, a returning veteran must be placed into the position that he or she would have attained with reasonable certainty.
However, is or her employer can take actions if they make other civil violations along the way. Similarly, if the userra’s health
Unique Features of USERRA
USERRA’s provisions set it apart from other employment laws, creating stronger protections for service members. Here are some key differentiators:
Individual Liability
A unique aspect of USERRA is the possibility of individual liability, meaning that managers, supervisors, and HR personnel can be personally held accountable for violations. For example, in the case of Bello v. Village of Skokie, a federal court ruled that individual defendants—including a police chief and personnel director—could be liable for USERRA violations if they were found to have implemented discriminatory policies. This underscores the need for decision-makers to act in compliance with the law.
No Minimum Employer Size
USERRA applies to all employers, regardless of size. This is in contrast to other employment laws, like Title VII, which apply only to businesses with a certain number of employees. Whether you’re a sole proprietor or a large corporation, USERRA compliance is mandatory.
No Statute of Limitations
USERRA has no statute of limitations for bringing claims. Courts have allowed cases involving alleged violations from years or even decades prior. For instance, in Mock v. City of Rome, a plaintiff was allowed to pursue claims for actions that occurred six and eighteen years earlier. This creates a long-lasting responsibility for employers.
“For Cause” Discharge Standard
Returning service members enjoy protection from termination without cause for a set period:
- Service of 30-180 days: Protection from discharge without cause for six months.
- Service of 181+ days: Protection from discharge without cause for one year.
Employers must demonstrate that any termination during this period was based on reasonable grounds and that the service member was aware their conduct could lead to dismissal.
Promotion Entitlements
USERRA ensures that returning service members are reinstated not only to their previous position but also to the role they would have achieved with reasonable certainty had their service not interrupted their employment. This could include promotions or raises they would likely have earned.
Individual Liability Under USERRA: Who Can Be in Trouble?
When it comes to USERRA violations, responsibility doesn’t stop at the organizational level. Individual managers, supervisors, and HR personnel can also face personal liability. Let’s delve deeper:
What is Individual Liability?
Who Can Be Liable?
Any individual involved in decision-making that violates USERRA protections, such as denying reemployment or retaliating against a service member, can be held personally accountable.
Financial Penalties:
Individuals found liable may be required to pay:
- Lost Wages and Benefits: Compensation owed to the employee.
- Attorney’s Fees: Legal costs incurred by the affected service member.
- Liquidated Damages: In cases of willful violations, damages can double the amount of lost wages and benefits.
- Managerial Accountability: Supervisors should understand that their decisions regarding military leave or reemployment can have serious consequences. Missteps can lead to both organizational and personal liability.
Preventative Steps for Employers and Managers
Comprehensive Training:
Regularly train managers, supervisors, and HR teams on USERRA compliance. Awareness is the first step to avoiding violations.
Policy Reviews:
Work with legal counsel to develop or update workplace policies, ensuring alignment with USERRA requirements.
Proactive Communication:
Encourage open dialogue with service member employees to address concerns and clarify expectations before and after military leave.
Who is Liable Under USERRA?
Liability under USERRA is not limited to organizations. Let’s look at who might be responsible for violations:
Employers
All employers—whether public or private—are required to comply with USERRA. This includes:
- Federal, state, and local government entities.
- Private companies, regardless of size.
- Nonprofit organizations.
Managers and Supervisors
Individual liability extends to decision-makers who directly or indirectly violate USERRA. This highlights the importance of equipping leadership with the knowledge and tools needed to manage compliance effectively.
Covered Service Members
The protections of USERRA apply to a wide range of service members, including:
- Active-duty personnel.
- Reserve and National Guard members.
- Members of the National Disaster Medical System when activated for military service.
- Veterans returning to civilian employment
Final Thoughts
Compliance with USERRA isn’t just a legal formality—it’s a vital way to honor and support those who serve our country. Employers, managers, and HR professionals have a shared responsibility to uphold these rights, creating a workplace that values both service and opportunity.
Bourassa Law Group For You
If you’re wondering questions about USERRA, don’t hesitate to seek guidance. Consult legal counsel, review the Department of Labor’s resources, and invest in training to stay ahead of potential challenges.
Contact our professionals at Bourassa Law Group today and let them help with you with your USERRA liability case. We understand how sensitive such cases can be. Therefore, we provide the best options for you.
Remember, together, we can build workplaces that truly support our heroes in uniform.
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