Legal Definitions - USERRA (The Uniformed Services Employment and Reemployment Rights Act)

USERRA, which stands for the Uniformed Services Employment and Reemployment Rights Act, is a federal law designed to protect the job rights of individuals who serve or have served in the uniformed services of the United States.

USERRA has two primary goals:

• Preventing Discrimination: It prohibits employers from discriminating against employees or job applicants based on their past, present, or future military service obligations. This means an employer cannot deny someone a job, promotion, or other employment benefit, nor can they fire or harass an employee, because of their connection to the military. For a violation to occur, military service must have been a significant factor in the employer's decision.
• Ensuring Reemployment: It guarantees that eligible service members can return to their civilian jobs after completing their military service. This reemployment right often includes the "escalator principle," meaning the returning service member should be reinstated to the position they would have attained, with the seniority, status, and pay they would have received, had they remained continuously employed. There are conditions for this, such as providing proper notice of service and applying for reemployment in a timely manner after discharge. Employers may have limited exceptions if their business circumstances have changed so drastically that reemployment is impossible or highly impractical.

Here are some examples illustrating how USERRA applies:

• Example 1: Discrimination in Promotion

  Scenario: Maria, a highly skilled software engineer, is also an active member of the Air Force Reserve. She applies for a promotion to lead engineer, a role for which she is well-qualified. During her interview, her manager expresses concerns about her upcoming annual training and potential deployments, stating that the lead engineer role requires "uninterrupted presence." Maria is subsequently passed over for the promotion in favor of a less experienced colleague who does not have military obligations.

  How it illustrates USERRA: This scenario demonstrates USERRA's anti-discrimination provision. The manager's decision to deny Maria the promotion was directly influenced by her military service commitments, making her military participation a "motivating factor" in the adverse employment action. USERRA protects Maria from being penalized in her civilian career due to her military duties.

• Example 2: Reemployment and the "Escalator Principle"

  Scenario: John worked as a sales manager for a national retail chain. He deployed for 15 months with the Army National Guard. While he was deployed, the company expanded, opening several new stores and promoting many of his peers to regional manager positions, which came with increased pay and responsibilities. When John returns and applies for reemployment, the company offers him his old sales manager position at the same salary he earned before his deployment.

  How it illustrates USERRA: This example highlights USERRA's reemployment rights, particularly the "escalator principle." John should not merely be returned to his old job but to the position he would have reasonably attained had he remained continuously employed. Given the company's growth and his peers' promotions, USERRA would likely require the company to offer John a regional manager position or a comparable role with equivalent pay and benefits, reflecting his career progression as if he had never left for service.

• Example 3: Discrimination in Hiring

  Scenario: A small business is interviewing candidates for an administrative assistant position. One candidate, Alex, is a recent veteran who served for four years in the Navy. During the interview, the hiring manager repeatedly asks Alex about his military service, specifically inquiring if he has any "residual issues" from his time overseas or if he plans to join the reserves, implying these might affect his reliability. Despite Alex's strong qualifications, the company hires a less experienced candidate, citing "better cultural fit."

  How it illustrates USERRA: This scenario demonstrates USERRA's protection against discrimination in hiring. The hiring manager's focus on Alex's military service and potential future military obligations, rather than his qualifications, suggests that his veteran status was a motivating factor in the decision not to hire him. USERRA prohibits employers from using military service as a reason to deny employment opportunities.