Orlando, FL Uniformed Services Employment Attorneys
The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the reemployment rights of service members when returning from service and prohibits an employer from discriminating against service members based on their military service.
Under USERRA an employer is prohibited from discriminating against a person on the basis of past, current, or future service in the military. It is against the law for an employer to deny initial employment, reemployment, retention in employment, promotion, or any other benefit of employment to a person on the basis of a past, present, or future service. Additionally, an employer cannot retaliate against a person who exercises their right under USERRA or taking part in a USERRA investigation.
An employer must reemploy servicemembers returning from uniformed services so long as the servicemembers meet the following five criteria:
- The service member was absent from a civilian job because of service in the uniformed services;
- The service member gave advance notice to the employer that he or she was leaving the job for service in the uniformed services (unless such notice was impossible, unreasonable, or precluded by military necessity)
- The cumulative period of military service with that employer does not exceed five (5) years;
- The service member was not released from service under dishonorable or punitive conditions; and
- The service member reported back to their job or submitted an application for reemployment in a timely manner (unless impossible or unreasonable).
USERRA requires an employer to reemploy service members to the same job, seniority, status, and pay, with the same rights and benefits that they would have had, had they not been absent for service.
Disabled Service Members
Under USERRA, an employer is required to make reasonable efforts to accommodate disabled veterans. Service members recovering from injuries endured during service or training may have up to two years from the date of completion of service to return to their jobs or apply for reemployment.
An employer is required to reasonably accommodate the disabled employee until they are capable of fulfilling the duties of their original position or if the disability cannot be accommodated, then to a comparable position. If a service member does not have a cause of action under USERRA, they may still have a cause of action under the Americans with Disabilities Act (ADA) for discrimination against their disability.
USERRA protects service members from discrimination, even in part, by their employer due to their service. Regardless whether the military service occurred in the past, present or future, an employer cannot terminate, deny employment, or deny employment benefits because of the service member’s application, performance, or obligation for service.
Burden of proof for plaintiff in USERRA cases
Burden of Proof
The service member/employee has the burden of proving that their military status or activity was a reason why the employer took adverse action against him or her, to establish discrimination or retaliation in violation of USERRA. Once the servicemembers satisfies their burden of proof, then the burden shifts to the employer to prove that they would have taken such adverse action regardless of the employee’s service. Damages available to an employee include back and front pay, loss of benefits, cost of litigation, and reasonable attorney’s fees.
Service members/employees whom wish to pursue an administrative remedy against their employer must first file a complaint with Department of Labor’s Veterans’ Employment and Training Service (VETS). VETS will, thereafter investigate and attempt to resolve the matter within 90 days. If VETS is unsuccessful, the service member may request a referral of the matter to the Attorney General; however, a service member is never precluded from filing a private action or having a right to a jury trial. In fact, there is no statute of limitations, nor can a State statute limit the application of a USERRA claim. If you believe your employer has violated your rights under USERRA or have questions about the application of USERRA, contact us at Wilson McCoy, P.A. today.