Chicago USSERA Lawyer
Uniformed Services Employment and Reemployment Rights Act (USERRA)
The Uniformed Services Employment and Reemployment Rights Act, also known by its acronym, USERRA, protects anyone serving in the armed forces or national guard or commissioned corps of the Public Health Services for taking a military leave of absence from work. In addition, in a time of war or national emergency the President of the United States can extend USERRA’s protections to others. USERRA provides several protections including: prohibiting discrimination by employers; requiring companies to reemploy or return someone to a similar position upon returning from armed service with seniority as though the person had never left the company; and maintaining benefits and health plans during the period of service. USERRA applies to private companies (including any companies they may own in foreign countries), state agencies and the Federal Government (although the rules for enforcement may be different.)
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. This includes discrimination in hiring, promotion, reemployment, or any other benefit of employment. USERRA also prohibits retaliation against anyone who seeks to enforce their rights under USERRA or assists another in enforcing those rights (in which case it also protects people who have not served in the armed services.)
In addition to prohibiting discrimination and retaliation, USERRA also requires companies to rehire or reemploy military personnel on return from military leave or duty whether active or inactive. In order to qualify for rehire under USERRA, the employee must give advance notice to the company before military leave or duty unless it is impossible or unreasonable to do so or he is prevented by military necessity from doing so. A person seeking reemployment under USERRA must seek reemployment very quickly. If the military leave was for less than 31 days, USERRA requires you to report to the company the next workday after returning from service (allowing for 8 hours sleep and reasonable time to get home). If the military leave was for less than 181 days but more than 30, you have 14 days to reapply. If the military leave was for more than 180 days, you have 90 days to reapply. In the case of an injury or illness, USERRA gives up to two years (and in some cases longer) to recover before reapplying for the job. A person who fails to report or reapply for employment or reemployment after 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 reapplication is two days late.
There are two exceptions. One exception is that, generally, the combined time away from the job for military leaves of absence will not be protected by USERRA if it exceeds five years. The second exception is if the company can prove that it is impossible, unreasonable or would otherwise cause an undue hardship for it to rehire the employee or that the job was intended to be a short one in the first instance.
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 he or she never left employment. In other words, seniority accrues even while the employee is in the military service. There is an exception if the employee is not qualified for the job or is unable to handle it because of injury. Where the employee is not qualified for the position for which he should have the seniority, USERRA requires the company to make reasonable efforts to train or otherwise assist the employee in gaining the necessary qualifications for the position. If this is not possible, USERRA requires the company to 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 which occurred or was aggravated while on that military leave.
In addition to the job, USERRA entitles an employee returning from military leave to any benefits of seniority as though the employee had not left the company for military service. This includes medical and pension benefits, which the company must continue to provide while the employee is on military leave, although the employee is still required to pay any portion, which he or she would have had to pay if 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. This means that you 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 form firing the employee without cause within the first 180 days of returning to work, and if the military leave was for more than 180 days, USERRA prohibits firing the employee without cause for one year after returning to work.
Maduff & Maduff is a Chicago USERRA Lawyer and has handled USERRA claims and can help you to understand your rights under USERRA. If you are being denied USERRA rights, we may be able to help. If you are fired for having taken military leave or fired while on leave or immediately upon your return, we can help you pursue your claims.