USERRA

Our veterans and active military service members deserve to have their rights and interests protected in all aspects of employment. The great men and women willing to serve in the military deserve to have peace of mind regarding job security and the ability to be gainfully employed upon return to civilian life. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) provides that peace of mind.

USERRA, at its core, is a federal law that outlines the reemployment protections and benefits afforded to active and reserve military members who are called to active duty. The lawyers at Famighetti & Weinick PLLC are well-versed in all aspects of USERRA, and they will fight to protect your rights if you have suffered employment discrimination due to your military service.

USERRA was passed in 1994 and provides protections for all uniformed services and their respective reserve components, including Army, Navy, Marine Corps, Air Force, Coast Guard, and National Guard. The protections afforded under USERRA may generally be broken down into three categories: 1) reemployment rights; 2) the right to be free from discrimination and retaliation; and 3) benefits-related rights. If any of the rights afforded under these three general categories are violated by an employer or potential employer, a complaint may be filed with the U.S. Department of Labor, Veterans Employment and Training Service (VETS) or the victim may file a lawsuit in court. Each of these general categories of rights will be more fully discussed in turn, below.

First, under USERRA, a military member is guaranteed reemployment rights if she or he leaves the job to perform military service. There are generally four additional conditions that must be met for a service member to take advantage of this right to reemployment under USERRA: 1) your employer must receive advance written notice of service; 2) the service member must return to work, or submit a reemployment application, in a timely manner after returning from service; 3) the separation from service must not have been with a disqualifying discharge or under other than honorable conditions; and 4) five years or less of cumulative military service while with a particular employer. This means that, under USERRA, a service member may only miss up to five years of work with the same employer due to military service in order to retain a right to reemployment, with some exceptions.

USERRA provides several important reemployment rights. For example, upon returning to work, the employer must give the returning service member the position that he or she would have attained had they not been called out for military service, with the attendant compensation and benefits. If this is not possible, the employer must, at a minimum, provide the returning service member with a comparable position. USERRA also requires that the employer make reasonable efforts to provide training for a returning service member to upgrade or refresh his or her skills.

Next, USERRA protects past and present military service members from employment discrimination and retaliation. This includes protection from being denied initial employment, reemployment, promotion, or any other benefit of employment. These protections also require an employer to provide reasonable accommodations to disabled veterans, and to allow injured service members up to two years from their service completion date to return to their job, or to apply for reemployment.

The third and final general right under USERRA is that of employment benefits, most notably health insurance benefits. An employer may not cut off health benefits for a service member or his dependents for up to 24 months while he or she is on military duty. Alternatively, if a service members opts not to retain the employer's health insurance while on duty, he or she has the right to be reinstated in the employer's health plan upon returning work, and the individual generally may do so without any waiting periods or exclusions.

If an employer violates any of the rights afforded under USERRA, a service member has the right to file a complaint with VETS. If VETS is unable to resolve the dispute, a service member may request the Department of Justice to investigate the complaint. Alternatively, a service member may bypass the VETS process by filing a civil action against the employer in court.

New York State similarly provides protections to military service members under the military law and the New York State Human Rights law.

The Long Island employment lawyers at Famighetti & Weinick PLLC are experience in handling USERRA related claims. If you believe that you or someone you know has been discriminated against by an employer due to their military service, please contact the USERRA lawyers at Famighetti & Weinick PLLC today.