Military Connection: USERRA Law- Employees Who Serve and Promotions


By Debbie Gregory.

According to the U.S. Department of Labor, the Uniformed Services Employment and Reemployment Rights Act (USERRA/USERRA Law) of 1994 is in place to protect the reemployment rights of service members and Veterans. When they return from a period of service, including when they are called to active service through the Reserves or National Guard, USERRA Law prohibits employer discrimination based on military service or obligations connected to military service. The law states that employers cannot refuse to hire, reemploy, retain or promote or deny any benefits of employment because of an individual’s military duty.

USERRA Law has established that the cumulative length of time that an individual may be absent from work for military duty and still retain reemployment rights is five years. The previous law provided four years of active duty, plus an additional year if it was for the convenience of the Government. USERRA clearly establishes that reemployment protection does not depend on the timing, frequency, duration, or nature of an individual’s service, as long as the basic eligibility criteria is met.

Disabled Veterans and their employment rights are also protected under USERRA Law. Employers are required to make reasonable efforts to accommodate a disabled Veteran’s disability. The law also provides protection to service members convalescing from injuries received during service or training, allowing them up to two years from the date of completion of service to return to their jobs or apply for reemployment.

Another function of USERRA is to make major improvements in protecting service member rights and benefits by clarifying the law, and by assessing and improving the systems of enforcement for USERRA Law.

One of the main rights protected by USERRA is that returning service members be reemployed in the job that they would have attained, had they not been absent for military service. This means the same seniority, status and pay, as well as other rights and benefits determined by seniority. USERRA Law also requires that reasonable efforts, including training or retraining, be made to support returning service members to refresh or upgrade their skills to help them qualify for reemployment. The law clearly provides for alternative reemployment positions if the service member cannot qualify for the position. USERRA also provides that while an individual is performing military service, he or she is deemed to be on a furlough or leave of absence, and is entitled to the non-seniority rights accorded other individuals on non-military leaves of absence.

Under rights protected by USERRA Law, an employer cannot legally pass over Reservists or members of the National Guard for promotions due to concerns over how their military obligations have impacted or will impact their attendance. Ordinarily, employers are allowed to use past or anticipated absenteeism when considering a candidate for promotion. But under USERRA Law, such resolutions are deemed illegal when the prior or expected absences are military-related.

Employees who think they were passed over for promotion because of their military service or obligations should immediately consult with a military law attorney. Depending on the circumstances, the attorney could show that the employee’s military duty was a motivating factor behind the adverse personnel action, and in violation of USERRA Law.

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Military Connection: USERRA Law- Employees Who Serve and Promotions: by Debbie Gregory