Employment

To qualify for USERRA’s reemployment rights, a servicemember must meet the following eligibility criteria:

• The servicemember must have left a civilian job;
• The servicemember must have given notice to the employer that he/she was leaving to perform military service;
• The military service must not exceed five years (although there are a few exceptions);
• The servicemember must have had an honorable discharge; and
• The servicemember must have reported back to work within the appropriate time constraints.

Reasonable efforts must be made to enable returning employees to refresh or upgrade their skills to enable them to qualify for reemployment. Additionally, servicemembers are entitled to immediate reinstatement of health insurance for the member and previously covered dependents with no waiting period and no exclusion of preexisting conditions other than those that are military service-related. Employers must reemploy servicemembers who are disabled because of their military service in a position most nearly approximating their former position if they can no longer perform that job.

USERRA also protects servicemembers from discrimination in hiring, promotion, and retention on the basis of past, present and future membership in the armed services, or military obligations.

USERRA applies to voluntary as well as involuntary military service, in peacetime as well as wartime, and the law applies to virtually all civilian employers, including the federal government, state and local governments, and private employers, regardless of size.

The Attorney General has authority to bring lawsuits against private, state, and local government employers for violations of USERRA only upon receiving complaint referrals from the Department of Labor (“DOL”).  Prior to referral, DOL’s Veterans’ Employment and Training Service (“VETS”) investigates and attempts to resolve servicemember complaints.  If the Attorney General is reasonably satisfied that the servicemember is entitled to relief, the Attorney General may commence an action in federal court on behalf of the servicemember.  If the employer is a state or state agency, the action is brought in the name of the United States.  In all other cases, the United States files suit in the name of the servicemember.

The Attorney General has assigned responsibility for handling USERRA referrals to the Civil Rights Division (“the Division”) of the United States Department of Justice.  Within the Division, USERRA referrals are assigned to the Employment Litigation Section, which often handles the referrals in cooperation with local United States Attorneys’ Offices.

USERRA currently allows for recovery of lost wages and benefits and liquidated damages up to double that amount.

A servicemember who seeks the Department of Justice's assistance must first file a complaint with the Department of Labor (“DOL”). DOL will investigate the complaint, determine whether it has merit, and attempt to voluntarily resolve meritorious complaints. If DOL cannot resolve a USERRA complaint, the person filing the complaint has the right to have DOL forward his or her complaint to the Department of Justice for review. The Department of Justice is responsible for enforcing the provisions of USERRA against state and local government employers and private employers. If the Department of Justice takes your case, it will serve as your attorney if you work for a private employer or a local government.  If you work for a state government, the Department of Justice may bring a lawsuit in the name of the United States.

Servicemembers who believe that they have been victims of an employment discrimination based on their military service may file a complaint with the DOL or file their own lawsuit in federal or state court.  To find more information about how to file a USERRA complaint with the Department of Labor, please click here. You should be aware that some courts have held that a lawsuit must be filed within a certain period of time after the alleged USERRA violation.  Thus, it is important that you file a complaint with DOL or consult with a private attorney as soon as possible.  Please note that you are not required to submit your USERRA claim to DOL or the Department of Justice. You have the right to file a USERRA lawsuit with your own private counsel or on your own.

You may also seek the assistance of the Employer Support of the Guard and Reserve ("ESGR").  ESGR is a Department of Defense agency that maintains an Ombudsman Service Program. That program provides information, counseling and informal mediation of issues relating to USERRA compliance. You may contact the ESGR about your employment situation by calling toll-free 1 (800) 336-4590. 

See our topic on Professional License Portability or fact sheet for more information.