Recently, the U.S. Supreme Court released a new ruling on USERRA, or the federal Uniformed Services Employment and Reemployment Rights Act. This decision by the country’s highest court affects the rights of all U.S. military and armed forces servicemembers.
Under the laws of USERRA, it’s illegal for companies to discriminate against military servicemembers when it comes to employment. In July 2022, the Supreme Court determined that USERRA rules also apply to state employers the same as private employers.
About the Recent Supreme Court Decision on USERRA:
An Army Reservist who mobilized overseas developed health complications from exposure to toxic conditions on their deployment. When they returned from their military service, their employer, the Texas Department of Public Safety, refused to allow them to return to their previous job and refused to reemploy them in another role.
When the servicemember sued the state, Texas argued that the lawsuit should be dismissed because USERRA doesn’t apply to state employers on the basis of sovereign immunity. The Supreme Court rejected the state’s argument and the Army Reservist was able to move forward with their lawsuit for damages.
USERRA protects the civilian jobs of military servicemembers who sacrifice so much for their country. This new Supreme Court ruling establishes that whatever type of job you have, whether you work in the private or public sector, the law won’t stand for discrimination at work.
Who Is Protected Under USERRA?
You are covered and protected under USERRA if you are a present or past member or applicant of the uniformed services, either in training or on duty. This includes all types of military and Armed Forces, the Army National Guard, the Air National Guard, the National Urban Search and Rescue Response System, and certain types of service in the National Disaster Medical System, such as being called to help by FEMA after a major disaster.
As a military servicemember, you have enough to worry about without also having to stress over having a job when you return from deployment. USERRA protections kick in if you voluntarily or involuntarily leave your civilian job to respond to the call for service to your country.
USERRA applies to all types of employers – private, public, and even government agencies, whether they have 2 or 500 employees on the payroll. The recent Supreme Court decision cements the fact that even states cannot get away with this type of discrimination.
What Are Your Rights Under USERRA?
As a service member, you get the following rights and protections under USERRA:
- The right of reemployment – If you leave your civilian job to perform uniformed service, you have the right to get reemployed after you return, either at the job position you left or in a similar or equivalent position with comparable pay and benefits. To qualify, you must have no more than 5 cumulative years of service while working for that employer. You must also give your employer advanced notice and return to work in a timely manner. The law will not protect you if you receive a disqualifying or dishonorable discharge.
- The right to be free from discrimination and retaliation – An employer cannot take negative action against you for being a past or present member or applicant of the uniformed services. This type of discrimination is illegal whether you experience it at your initial employment, your reemployment, company promotion or retention decisions, or your access to employment benefits. If you file a claim or lawsuit under USERRA against your employer, it’s also illegal for them to retaliate against you.
- The right to health insurance protection – Even if you leave your job for military service, you can choose to keep your employer’s health insurance for you and your family for up to 24 months. If you don’t keep your employer-based health plan, you can still be reinstated when you return without exclusions or waiting periods.
Employment discrimination and retaliation are serious issues that affect thousands of military servicemembers, applicants, and veterans across the country. USERRA gives you the power to protect your rights and reclaim any income or benefits you lost because of discrimination.
Can My Employer Deny My Military Leave?
If you’re a member of the uniformed or armed services, you may get voluntarily or involuntarily called out or deployed for duty, making it impossible to do your job. Under USERRA, your employer must allow you to take military leave in order to perform your duties. If you give the proper notice, your employer must also reinstate you after you return from military leave.
Can Your Employer Lay You Off for Going on Military Leave?
No. Under USERRA, it’s illegal for your employer to lay you off, fire you, or terminate your employment contract just because you go on military leave.
However, your employer may lay you off if there’s a legitimate business reason that doesn’t have to do with your service. The good news is that it’s on your employer to prove this.
What Happens If an Employer Violates USERRA?
If your employer violates your USERRA rights, that can result in serious consequences. Courts get significant powers to make companies comply with the law to protect service personnel.
In a successful USERRA discrimination lawsuit, the judge could:
- Hold your employer in contempt with fines that pile up the longer they take to comply
- Execute restraining orders against your employer to stop them from acting
- Grant you an injunction for relief to make your employer take corrective action – for example, reinstate you to a specific job position or enroll you in benefits immediately
- Award you monetary compensation for damages to cover your losses, including any wages you lost or the value of benefits you were denied
Employment discrimination and retaliation can cause you serious grief and anxiety. This type of employment behavior is unacceptable – and the law can help you hold your employer accountable, whether they’re a private company or a government entity.
How Can You File a USERRA Complaint or Lawsuit?
The first step to a successful USERRA complaint or lawsuit is to speak to an employment discrimination lawyer who understands the unique challenges and angles of USERRA cases.
If your employer is discriminating against you based on your uniformed service, you can file a claim with the U.S. Department of Labor (DOL) Veterans’ Employment and Training Service (VETS) to get an administrative solution to your situation. A USERRA discrimination lawyer can help you prepare this claim for the greatest chance at success. But if VETS cannot resolve your issue, you can file a lawsuit against your employer in federal court.
At Harlan Law, we help military service members and veterans in San Diego and the Southern California region get the restitution they deserve for their employers’ bad actions. Call Jordon Harlan now at (619) 870-0802 or use our contact form to get started.