USERRA
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Uniformed Services Employment and Reemployment Rights Act (USERRA)

The lawyers at Tully Rinckey know what it means to serve. In fact, a number of our attorneys, including both partners, are veterans of the United States Military. This allows our firm a unique perspective on the importance of military service to our country. Because of this outlook, we are always looking to help people enforce the rights awarded to them as a member of the armed forces, a veteran, or a federal employee.

Soldiers who are called to active duty serve and protect their country. They should not come home from a military leave of absence to find they have no job or that their seniority has been taken from them.

The Uniformed Services Employment and Reemployment Rights Act prohibits discrimination against anyone for serving in the armed forces or for taking military leave from a civilian job. This includes discrimination in hiring, promotion, reemployment, or any other benefit of employment. USERRA also prohibits retaliation against anyone who seeks to enforce their rights under USERRA or assists another in enforcing those rights.
Who USERRA Affects:
- Armed Forces
- Reserve or National Guard
- Commissioned corps of the Public Health Services
- Under President’s extension in time of war or national emergency
Who USERRA Applies to:
- Private Companies
- State Agencies Federal Government

USERRA Provides Protection over the following:

Reemployment Rights
In addition to prohibiting discrimination, USERRA also requires companies to rehire or reemploy military personnel on return from military leave or duty whether active or inactive. A person seeking reemployment under USERRA must do so very quickly. Depending on the situation, an individual on military leave could have anywhere from 14 days to two years to reapply for the job.

In order to qualify for rehire under USERRA, the employee must give advance notice to the company before military leave or duty unless it is impossible or unreasonable to do so or he is prevented by military necessity from doing so.

Seniority and Benefits under USERRA
A person returning to work after military leave under USERRA is entitled to the same seniority and position as though he never left employment.

In other words, seniority accrues even while the employee is in military service. In addition to the job, USERRA entitles a person returning from military leave to any benefits of seniority as though he had not left the company for military service. This includes medical and pension benefits, which the company must continue to provide while the employee is on military leave.

For Cause Termination
Normally, employment is at will. This means that an employee can quit or be fired at any time for any reason other than an illegal one. However, this is not the case under USERRA. Depending on the length of time which an employee was on absence due to military leave, the company is prohibited from terminating without cause for a certain period after the return to work.

How to Enforce Your Rights under USERRA
If a company violates USERRA, the employee can file a claim in two ways. The first is with the Secretary of Defense. In many cases, the Secretary of Defense will be unable to assist in securing USERRA rights and the case will be referred to the Attorney General. The Attorney General could then refuse to file the USERRA lawsuit.

The second way an employee cam file a claim is with a private lawyer.

What happens after the lawsuit is filed:

Once the lawsuit is filed, a court can do a number of things, including:

- Force the company to comply with USERRA
- Compensate the employee for lost wages or benefits for failing to comply with USERRA
-Require the company to pay double the amount of lost wages and benefits if it determined the violation of USERRA was willful
- If won, the employee is entitled to recover any attorney’s fees and costs associated with the lawsuit

If lost, the employee cannot be required to pay any of the attorney’s fees or costs incurred by the employer.

Timeline of USERRA Lawsuits:
There is no statute of limitations on a USERRA claim. The lawsuit can be filed at any time to recover lost wages or benefits.

However, it is important to file the lawsuit as soon as possible. A lawsuit which is filed late can impact the other types of relief a court can award. For example, a court may not be able to require a company to rehire someone if the employee brings the suit years after the military leave in question.

This description is not intended to be a complete explanation of USERRA, but only to provide an overview. USERRA provides many protections not completely discussed here. Each situation is unique and there are many rules and exceptions under USERRA.  It is important for us to gain a full understanding of your personal circumstances in order to advise you on further steps and how the Act will protect you.

If you have questions about your USERRA rights you should call us at 202-787-1900 to speak with one of our attorneys.

Tully Rinckey PLLC
Attorneys & Counselors at Law
1800 K STREET NW SUITE 1110, WASHINGTON, DC 20006. PHONE: (202) 787-1900
441 NEW KARNER ROAD, ALBANY, NY 12205. PHONE: (518) 218-7100 FAX: (518) 218-0496

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