Chicago USSERA Attorney
Uniformed Services Employment and Reemployment Rights Act (USERRA)
The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that protects anyone serving in one of the armed forces, the national guard, or commissioned corps of the Public Health Services, and allows for them to take a military leave of absence from work. In a time of war or a national emergency, the President of the United States may also extend USERRA’s protections to others as well. USERRA provides several protections, which include prohibiting discrimination by employers, requiring companies to re-employ or return someone to a similar position upon their return from service with seniority as though the person had never left the company, and maintain their benefits and health plans during the period of their service. USERRA applies only to private companies, including any companies that they may own in other countries, state agencies, and the Federal Government.
Discrimination and Retaliation Under USERRA
USERRA prohibits discrimination against anyone for serving in the armed forces, or for taking military leave from a civilian job. The law prohibits Discrimination during the hiring process, a promotion, upon re-employment, or for any other benefit of employment. USERRA also prohibits an employer from retaliating against an employee who seeks to enforce their rights under USERRA, or assists another in enforcing their rights.
In addition to prohibiting discrimination and retaliation, USERRA requires companies to re-hire or re-employ military personnel upon their return from military leave or duty, whether active or inactive. In order to qualify for re-hire under USERRA, the employee must give advance notice to the company before his or her military leave or duty, unless it is impossible or unreasonable to do so, or they are prevented by military necessity from doing so. A person seeking re-employment under USERRA must seek re-employment as soon as possible. If their military leave was for less than 31 days, USERRA requires they report to the company the next workday after their return from service. If the military leave was for less than 181 days, but more than 30, you have 14 days to re-apply. If the military leave was for more than 180 days, you have 90 days to re-apply. In the case of an injury or illness, USERRA gives provides up to two years, possibly longer, of medical leave to recover.. A person who fails to report or reapply for employment after their military leave within the appropriate time period does not automatically forfeit his entitlement to USERRA rights and benefits. The company must still apply its general disciplinary policies, even if an employee returning from military leave does not meet these deadlines. For example, if a company has a progressive discipline policy which provides that its employees get a written warning after the second absence, and are not terminated until the third, an employee returning from military leave may still be permitted to return to work, even if their re-application is two days late.
However, there are two exceptions to this rule. One exception is that if the combined time away from his or her job for military leaves of absence exceeds five years, they will not be protected by USERRA. The second exception is if the company can prove that it is impossible, unreasonable, or cause an undue hardship for their business to rehire the employee, or that the job was intended to be a short one in the first instance, the employee then would not qualify for USERRA.
Seniority and Benefits Under USERRA
A person returning to work after a military leave under USERRA is entitled to the same seniority and job he or she would have had if they had never left employment. In other words, seniority will continue to accrue, even while the employee is away serving the military. However, if the employee is not qualified for the job, or is unable to handle it because of injury, then the employee will not qualify for the seniority or job. If an employee is not qualified for the position for which he should have the seniority, USERRA requires that the company make reasonable efforts to train and assist the employee in gaining the necessary qualifications for the position. If this is not possible, USERRA will require that the company rehire the employee in the nearest approximate position for which the employee is, or can become qualified. USERRA also requires a company to make reasonable efforts to accommodate any disability or injury that may have occurred or been aggravated while the employee was on military leave.
In addition to the job, USERRA entitles an employee who is returning from military leave to any benefits of seniority as though the employee had not left the company. These benefits include medical and pension benefits, which the company must continue to provide the employee while they are on military leave. The employee is still required to pay their portion, as he or she would have had to pay if they were still employed. USERRA does not give an employee any rights he would not otherwise have had if the employee did not take the military leave of absence.
For Cause Termination
Normally, employment is at will, meaning that an employee can quit or be fired at any time for any reason, other than an illegal one, but USERRA changes this. In the case of an employee returning from a military leave of absence of more than 30 days, USERRA prohibits a company from terminating the employee without cause, within the first 180 days of returning to work. If the military leave was for more than 180 days, USERRA prohibits terminating the employee without cause, for one year after returning to work.
Maduff & Maduff is a Chicago USERRA attorney and is experienced at handling USERRA claims. We can help you to understand your rights under USERRA in the event that you are being denied your USERRA rights. If you have been fired for having taken military leave, while on leave, or immediately upon your return, we can help you to pursue your claims.