Are you the employer of someone who's thinking about joining the military? Do you have a former employee who wants his job back after his military service is over? There are laws that protect the employment rights of veterans. Some of the most important laws are contained in the Uniformed Services Employment and Reemployment Rights Act (USERRA).
Uniformed Services Employment and Reemployment Rights Act (USERRA)
The USERRA is a federal act that applies to all states. You need to make sure you understand the protection provisions of the USERRA. The US Department of Labor, through the Veterans Employment and Training Service (VETS), is authorized to investigate you if there are any complaints. There are three main rights that it protects:
- The right of veterans to be reemployed
- The right of veterans to be free from discrimination
- The right of veterans to be free from retaliation
Right to Reemployment
Any former employee that enters the military may have a right to reemployment. This means that you're obligated to give him a job when his military service is finished. There are five conditions that must be met for an employee to gain a reemployment right:
- He worked for you when he volunteered or was called to duty
- He gave you advance notice that he's entering the military
- He served five years or less
- He was released from the military with at least a general discharge
- He applied for reemployment in a timely manner
Once the employee is rehired, you're obligated to give him anything he would have received if he never left. This includes raises, promotions and benefits. His seniority status will be as if he remained continuously employed. However, vacation time doesn't continue to accrue. He'll retain what he had prior to serving in the military.
Changes may have been made in your business since the employee left for the military. You're obligated to make reasonable efforts to help the employee perform his job. This may include training or special accommodations.
Right to Be Free from Discrimination
As an employer, you can't legally discriminate based on race, color, religion, sex or national origin. The USERRA also makes it illegal to discriminate based on military service. This includes past, present and future service.
The employee's right to be free from discrimination applies throughout the whole employment relationship. Based on his military service, you can't deny:
- Initial employment
- Employee benefits
- Retention in employment
Right to Be Free from Retaliation
An employee has the right to file a complaint against you for any violations of the USERRA. Under the law, you can't retaliate against him for his actions. This includes any assistance he gives to the investigation. Make sure to not commit any employment action that looks like retaliation. Being cautious may save you time and money later defending your actions.
Questions for Your Attorney
- What are the benefits of having an attorney help me reemploy employees with military service?
- Can I refuse to rehire a former employee if I believe his military service changed him?
- What if there are other reasons besides military service that makes me want to fire a particular employee?