The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law designed to protect the civilian employment of military service members. It ensures that individuals who leave their jobs for military duty or training service can return to the same job, with the same benefits, as if they had never left. Public and private employers must comply with these employment and reemployment rights because overlooking them can cause severe legal consequences.
USERRA applies to virtually all employers, including private employers, public health service institutions, and federal agencies. It covers military members, including National Guard members, Air National Guard personnel, and those in the National Disaster Medical System. Employers must understand their obligations under this federal law to avoid alleged USERRA violations that can lead to costly legal claims.
Understanding USERRA
USERRA, or the Uniformed Services Employment and Reemployment Rights Act, protects military service members from workplace discrimination and retaliation.
This federal law guarantees that when employees leave their civilian jobs for military service, their rights stay protected:
- Reemployment Rights: Employers must reinstate returning service members to their previous position or one of equal rank, status, and pay.
- Protection from Discrimination: Employers cannot treat employees unfairly because of their military service.
- Continuation of Benefits: Employees can keep benefits like health insurance while serving.
When Employers Can Be Held Personally Liable
Employers and supervisors who violate USERRA can face personal liability, meaning they can be sued individually in federal court. This risk increases when managers take adverse employment actions against service members or fail to comply with USERRA’s requirements on time.
Common violations include:
Denying Initial Employment: Refusing to hire someone due to their military status.
Wrongful Termination: Dismissing employees because of their service obligations.
Failure to Reinstate: Not allowing returning service members to resume their former job with reasonable certainty.
Employment Discrimination: Penalizing an employee for military obligations or training service.
Withholding Benefits: Not providing the same benefits, such as pension benefits and health insurance coverage, as non-military employees.
Employers must provide advance notice to employees regarding their rights under USERRA. If an employer violated USERRA, they may be required to pay lost wages, attorney’s fees, and other legal costs associated with a federal district court case.
The OKCPS Case: A Cautionary Tale
The U.S. Department of Justice (DOJ) recently settled a lawsuit against Oklahoma City Public Schools (OKCPS) for violating the Uniformed Services Employment and Reemployment Rights Act (USERRA). The case, filed on behalf of Air Force Reserve Staff Sergeant Michael McCullough, highlights the risks employers face when mishandling military leave requests.
Key Terms of the Consent Decree
The settlement, formalized in a consent decree, includes the following provisions:
Financial Compensation: OKCPS must pay McCullough $60,000, including $15,000 in back pay and $45,000 in additional damages.
Policy Revisions: OKCPS must update its policies and procedures to ensure full compliance with USERRA.
Mandatory Training: All staff members must undergo USERRA training using DOJ-approved materials to prevent future violations.
Ongoing DOJ Oversight: OKCPS must submit periodic reports for the next two years, detailing:
Reemployment requests under USERRA.
Any complaints regarding USERRA compliance.
Investigations, resolutions, and employees involved in USERRA-related actions.
This case serves as a warning that failing to accommodate military leave or mishandling military obligations can lead to severe legal defense costs. The court expressly rejected the employer’s defense, ruling in favor of the returning service member. The employer was ordered to pay legal costs, lost wages, and other damages, highlighting how serious USERRA claims can become.
Legal Risks for Employers Who Mishandle Military Leave Requests
Employers who mishandle military leave requests expose themselves to serious legal consequences.
These risks include:
Lawsuits and Court Rulings: Employers may be sued in federal district court and forced to pay significant damages.
Reputational Harm: Negative publicity from USERRA claims can damage an employer’s standing in the community.
Financial Penalties: Employers may need to pay back lost wages, pension benefits, and attorney’s fees.
Government Investigations: Labor’s Veterans Employment division may investigate alleged violations, leading to further legal scrutiny.
To prevent these issues, employers must:
Ensure compliance with USERRA’s employment law statutes.
Provide employee notices about their military leave rights.
Allow military members to return to their civilian jobs without discrimination.
Offer to continue health insurance coverage and the same benefits as before military duty.
How Employers Can Protect Themselves from Liability
Employers can take proactive steps to avoid personal liability under USERRA:
Educate Management: Train supervisors on USERRA regulations and employer obligations.
Develop Clear Policies: Ensure that all military service members receive fair treatment in the civilian workplace.
Maintain Proper Documentation: Keep records of military leave requests, employee notices, and employment decisions.
Consult Legal Counsel: Seek guidance from attorneys experienced in employment law statutes and labor’s veterans employment protections.
Frequently Asked Questions (FAQ) on USERRA Violations and Employer Liability
1. Who is protected under USERRA?
USERRA protects military service members, including those on active duty, the National Guard, the Air Force Reserve, and the National Disaster Medical System. It ensures that they can return to their civilian jobs without facing discrimination or wrongful termination.
2. Is a police officer protected under USERRA? (Does USERRA protect police officers?)
Yes, USERRA protects police officers who serve in the military, including the National Guard or Reserves. If an officer is called to military duty, their employer must reinstate them in their previous position or an equivalent one when they return.
3. What happens if an employer violates USERRA?
If an employer violates USERRA, they may face lawsuits, financial penalties, and even individual liability for managers or supervisors involved in the violation.
4. What qualifies as an adverse employment action under USERRA?
An adverse employment action includes firing, demoting, refusing to hire, or denying promotions and benefits due to an employee’s military status or obligations. Any negative action taken against a service member because of their military duties can lead to an alleged USERRA violation.
5. Can non-military employees sue under USERRA?
No, USERRA only applies to employees who serve in the military. However, non-military employees who face workplace discrimination related to military obligations (such as retaliation for supporting a military coworker’s rights) may have protection under other employment law statutes.
6. How soon must an employer reinstate a service member after military duty?
Employers must reinstate service members in a timely manner, typically within days of their request, depending on the length of their service. If an employer delays or refuses to reinstate a returning employee, it may be considered a USERRA violation.
7. What role does the Supreme Court play in USERRA cases?
While most USERRA cases are handled in federal district courts, the Supreme Court can hear cases that involve significant legal disputes over the law. However, most violations are resolved before reaching that level.
8. Can an employer be held personally liable for violating USERRA?
Yes, supervisors and managers can face individual liability if they directly contribute to violating a service member’s USERRA rights. They may be personally sued in federal court for their actions.
9. How did the court rule in the OKCPS case involving USERRA?
The court expressly rejected the employer’s defense and ruled in favor of the returning service member, highlighting that failure to properly reinstate military employees can lead to serious legal consequences.
10. What notices must employers provide to military employees?
Employers must issue employee notices informing service members of their USERRA rights, including their right to reemployment, protection from discrimination, and continued benefits during military leave.
11. Are public health service employees covered under USERRA?
Yes, USERRA covers employees in the public health service who are called to military duty, ensuring they can return to their positions without losing their rights or benefits.
12. Does USERRA protect employees undergoing military training?
Yes, USERRA protects employees attending military training, including drills and annual training sessions. Employers cannot take adverse employment action against them for fulfilling these obligations.
13. What should employers do to ensure compliance with USERRA?
Employers should:
Provide proper employer support, including training HR and management on USERRA requirements.
Issue employee notices about military leave rights.
Reemploy service members in a timely manner after their return.
Avoid discrimination based on military status.
14. What legal process can an employee follow if their USERRA rights are violated?
If an employee believes their rights were violated, they can file a complaint with the U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS). If unresolved, the case may proceed to a federal district court, where the employer may be required to pay damages.
Seek Legal Guidance to Avoid USERRA Violations
Employers must take USERRA compliance seriously to avoid lawsuits, financial losses, and reputational damage. Managers and supervisors can be held personally liable for violating service members’ employment and reemployment rights. Cases like OKCPS demonstrate how federal law protects veterans’ employment and ensures that military leave is properly handled.
If you believe your employer violated USERRA or need assistance ensuring compliance, Bourassa Law Group can help. Our legal defense team specializes in employment discrimination cases, USERRA claims, and employer support.
Contact us today for a consultation to safeguard your civilian employment rights and avoid costly legal consequences.
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