Stateside Legal: Basics of USERRA

Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), members of the uniformed services are entitled to return to their jobs as if they had never deployed.  Although this is a significant law, you need to know that it does not protect your employment from misconduct on the job, nor does it address every dispute you may have with your employer.   So, your employer can still fire you for other reasons but not because of your absence during uniformed service.  USSERA is designed to prohibit employment discrimination against any person on the basis of membership in the uniformed services and provides reemployment rights after separation of service. Although money damages for lost wages and benefits and attorney’s fees are available, the law does not offer “punitive damages.” Your legal remedies under USERRA are limited to things an employer can do to be in compliance with USERRA.  For example, your employer fired you because he didn’t want an employee who would be gone for a year.  A typical remedy would be requiring the employer to rehire you and award back pay for the time that you could have been employed by the company while your claim was pending.  Find a quick summary from the U.S. Dept. of Labor here.

Again, the goal of USERRA is to encourage and protect non-career participation in the uniformed services by eliminating any related job risks. Most cases are handled informally. Often employers just don’t know that they are breaking the law. Most employers do not want to break the law and will agree to comply with USERRA once they are better informed. Informal mediation is viewed as a good option because it helps the service member maintain a working relationship with the employer – a relationship that could break down quickly if the employer is sued.

So here are three broad steps to take if you think your employer is violating your rights under USERRA:

  1. Confirm that USERRA is being violated (or at least that you have a plausible USERRA case)
  2. Informal action
  3. Formal action

Confirm USERRA is Being Violated

Many violations occur because employers don’t know about USERRA. The same is true for service members. Some members who believe their reemployment rights have been violated have misunderstood their legal protections. So, first check to see if you have a valid USERRA claim.   Check the Employer Support of the Guard and Reserve (ESGR) website. They also operate a toll free number to call and talk about your situation: 1-800-336-4590 (select option 1) between 8 AM and 6 PM EST (M-F). You can also contact your state’s Director for Veterans’ Employment and Training Service (DVET) of the Department of Labor (DOL) with questions and to get more help and information.

Informal Action

Once you have done your homework and believe that you have a valid case, it’s time to talk to your employer. The ESGR hasOmbudsmen who can mediate between you and your employer. They will talk to you and your employer to mediate a remedy. The remedy is an action that will bring the employer into compliance with the law. According to the ESGR, 95 percent of all requests for assistance are resolved informally. To start mediation, call the Ombudsmen at: 1-800-336-4590 (select option 1) between 8 AM and 6 PM EST (M-F).

Formal Action

Option 1: Find and Hire a Lawyer

If your rights have been violated and your employer has refused to cooperate, you still have options. Considering the complex nature of USERRA cases, we recommend that you seek the help of an attorney specializing in USERRA claims.

Using our FIND LOCAL HELP map, select your state, and select ‘Lawyer Referral’ as the “org type.”  You will get a map of your state’s Bar-sponsored lawyer referral programs (LIRS) and their contact information.  Your state or local LRIS office should know which lawyers in your state specialize in USERRA claims. A lawyer who handles employment cases could be a good option, too.

You will probably be charged a small fee for the referral. However, the USERRA statute provides attorneys fees for winning claims. So, a private attorney who has expertise in handling USERRA claims and who thinks you have a strong case would probably be willing to work out an affordable fee arrangement with you. This fee agreement would be based on the lawyer’s expectation of the court ordering the employer to pay your attorney fees at the end of a successful case.

Option 2: File a complaint through the U.S. Dept. of Labor

If you cannot find a lawyer or choose not to hire one, you can file a complaint through your nearest DVET. DVET’s advocate for Veterans and have helped win complaints. However, if you go this route, you should also be aware that the DVET must consider the legal rights of the employer, as well. The DVET employees are more like referees with USERRA expertise. They are charged with finding USERRA violations and enforcing your rights under the statute, but they do not have all the same legal tools or ethical responsibilities to advocate for you as your own private lawyer would have.

The DVET will determine if the employer violated USERRA. Unlike the ESGR, DVETs cannot contact employers until a claim has been filed. After filing, the DVET will try and negotiate an adequate remedy.

Go here to file a USERRA complaint online, or download a form, fill it out and follow the mailing instructions. Your complaint will be forwarded to a DVET office in your area.

Unfortunately, DVET offices have limited enforcement power, and an employer may decide not to comply with the recommended solution. If the negotiations break down, your DVET advocate will ask if you want your information sent to the Attorney General (for private/state employees) or to the Office of Special Counsel (federal employees). These government lawyers have the power to enforce the USERRA laws but can take only a few of the many cases that are filed. If this doesn’t work, your remaining option would be to file a claim based on what type of employee you are:

Federal Employee: File an appeal with the Merit Systems Protection Board.

State Employee*: File a lawsuit in a court of that state.

Private Employee: File a lawsuit in United States District Court.

* Certain members of the National Guard are considered state employees.

There is little support for people filing a court action without a lawyer. If you had filed a claim with a DVET, you can obtain your case file from the DOL through a Freedom of Information Act (FOIA) request. Your case will show the DVET’s determination of USERRA violations, as well has their suggested remedies. As you can see, this process is complicated. Taking this step would be difficult to do on your own; finding a lawyer with USERRA experience is ideal.

CAUTION:   Generally speaking, employers still have the right to discipline and fire employees for work-related misconduct.  So you cannot assume that because you have re-employment rights under USERRA that you also have unconditional ongoing job protection.  But if you think that you have been disciplined or fired because of your absence for military service, start with step 1 above.

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