OK, but what are “benefits of employment”? When you return back from your tour, you are entitled to start your employment again – not just where you left off, but where you WOULD HAVE BEEN. That means your seniority with that company keeps accruing while you are away on duty, and all the benefits that come with that. The law is written to be very broad and encompass a wide definition of “benefit of employment,” including:
- Terms, conditions, or privileges of employment (e.g. parking spaces, work hours, facility use)
- Any advantage, profit, privilege, gain, status, account, or interest (including wages or salary for work actually performed) that accrues by reason of an employment contract or agreement or employer policy, plan, or proactive.
- This also includes rights and benefits under a pension plan, health plan, and employee stock ownership plan
- Insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations
- The opportunity to select work hours or locations of employment
This is not even the full list! If you can make a winning argument on how something is a “benefit of employment” you would have if you stayed, you are entitled to it. What if I contracted away my rights? If you agreed to a deal where the employee gets less rights – those aspects of the deal are ignored and USERRA controls! If you contracted a better deal than what USERRA provides to employees, that deal is used. Whichever is better for the employee, controls! What about a law/regulation that seems to contradict USERRA? State and local laws/regulations that would reduce an employee’s rights under USERRA are completely superseded. Not even the Governor can take away your USERRA rights. My previous job was as a National Guard Technician employed under Title 32. What about me? Do not let the uniforms confuse you. USERRA applies to that job. The Adjutant General of your state is the “employer” in that case. My company was bought and the new owners where never told I existed. Am I S.O.L? There is no Statute of Limitations on this right. But you do need to return within 5 years. The company that bought your old company, if it’s anything at all like the previous company, is called a “successor in interest.” They assumed responsibility to reemploy you along with all the other responsibilities they assume when they bought the business; even if they were not explicitly aware of those responsibilities. Whether they are a similar enough to the old business to be a successor will be determined on a case by case basis. A boat building workshop bought by a car building company and converted to make amphibious cars may be a “successor in interest.” A boat building worship bought by a painter and turned into an art gallery… maybe not. Ask your legal assistance attorney to go over the factors and how they apply to your situation. I work for the Federal government or a NAFI. Does USERRA cover me? You bet. Not only does USERRA apply to the federal government and all instrumentalities (including NAFIs), but when enacting USERRA, Congress intended that the Federal government would “be a model employer in carrying out the provisions of this chapter.” The employers you should have the least amount of problem with is the Feds. If you are getting pushback from some middle-management folks (or even your director), chat with your HR/civilian personnel folks; they will set them straight. Does the type of duty matter? Does it need to be voluntary? USERRA applies to all uniformed service (even if you are not actually wearing your uniform) in the performance of duty on a voluntary or involuntary basis—it includes active duty, active and inactive duty for training, initial active duty for training, full-time National Guard duty, and absences for mandatory fitness tests or appointments. There is no distinction between Title 10 or Title 32 ANG service for the purpose of USERRA. So what is “uniform service”? Uniformed services means the Air Force, Army, Navy, Coast Guard, Marine Corps, the Public Health Service commissioned corps, Army National Guard, & the Air National Guard. It also means the National Urban Search and Rescue Response System under the Robert T. Stafford Disaster Relief and Emergency Assistance Act . . . or whomever the president wants to designate in times of war or national emergency. Ok, I’m the employer and you are my lawyer. How do I deny them this? Well, there are unlimited legal arguments to attack any law, and occasionally they are successful. The biggest reason someone does not get their full USERRA “Benefits of Employment” is if they are no longer “qualified” for the position they would be put in. That means they do not have “the ability to perform the essential task of the position.” Not knowing the latest memo format or where the coffee is kept is not an “essential task of the position.” No longer being able to manipulate the machinery needed to do their job may be “essential”. It’s determined on a case by case basis. But remember – ESSENTIAL TASK, not little things, and not personality disputes. Also, where they kicked out? Folks with bad characterizations of discharges (BCD, DD, UOTHC, dropped from the rolls, dismissed). To be eligible, the employee must have an Honorable or General (“Under Honorable Conditions”) service characterization. Also, you should be nicer to veterans Mr. Employer. Still the employer: Can I demand documentation that does not exist yet (or is hard to find)? No. That tactic explicitly against the law. I am about to deploy. What do I need to do to make sure I have USERRA rights when I return? - You need to have the job in the first place. Employers cannot deny you employment based on veteran status, but they are not required to give you a job because of it.
- Give advanced notice! Written is preferable so you can have evidence. Use an email account you control. But even verbal notice is permissible in the law. No notice required in emergency situations or for national security reasons.
- Be back within 5 years (but if it’s out of your control, there are some exceptions to this)
- When you are discharged, report back to the employer in a timely manner. “Timely” is not defined in the law. Imagine you are in court explaining why your delay was “timely.” Try not to be a position where you need to justify a delay returning.
- Provide proof of your discharge, that your service did not last longer than 5 years (or legit reason why not), and that you were discharged with an Honorable or General service characterization.