A recent Supreme Court decision held that a state cannot invoke sovereign immunity, a doctrine prohibiting a government from being sued, to avoid liability under the Uniformed Services Employment and Reemployment Rights Act.
Unlike other employment-related laws, USERRA applies to all employers. This includes public and private employers, federal, state and local governments, as well as employers of all sizes, because there is no minimum number of employees required for coverage under that particular law.
“In fact, USERRA’s definition of ‘employer’ is so comprehensive that some courts have even recognized individual liability under certain circumstances, such as a police chief who had the personal authority to hire and fire individuals,” note attorneys Emily Ayvazian and Phillip Harris of the Akerman law firm.
The USERRA prohibits employment discrimination based on past, present, or prospective military service and generally requires employers to reemploy servicemembers upon their return from uniformed service.
“While most people would agree it is a noble goal for a servicemember’s job to be waiting for them when they get back from active service, it is not always an easy task for employers to simply reinstate an employee, especially if circumstances with the employer or employee have since changed,” the attorneys say.
“It is integral for employers to continuously be aware of their obligations under USERRA to ensure compliance with the many protections it affords active-duty and veteran employees.”
The main purpose of USERRA is to protect the civilian jobs of servicemembers who take a leave absence from their employment in order to serve in the uniformed services, which includes the armed forces, national guard, commissioned corps of the public health service, and any other category of persons designated by the President of the United States in time of war or national emergency.
Under the law, the employee is obligated to provide advance written or verbal notice of their military service to their employer; have no more than five years of cumulative service in the uniformed services during their employment with the particular employer; and return to work or apply for reemployment in a timely manner after conclusion of service.
Employees also don’t qualify under the law if they have been separated from service for a disqualifying reason, such as a dishonorable discharge.
Upon their return from military service, the qualified servicemembers are entitled to prompt reemployment in the position they would have attained, along with the same seniority, status, pay, rights and benefits they would have achieved had they not been absent from work for military service.
For public and private employers, the requirements of USERRA and related state laws can be confusing and intimidating. Ayvazian and Harris advise that now is the time for employers to do the following:
Review your company’s handbook and ensure all polices on uniformed services leave comply with USERRA. Depending on your state, you may need to address state specific laws. Florida, for example, has laws designed to help veterans obtain and maintain employment by giving preference in employment and promotions after being deployed.
Review your company’s current census and determine whether you now have employees out on military leave. If there are, ensure there is an open line of communication and a plan in place for when the employee returns. Also, make sure the employee’s leave is coded or classified correctly as service-related leave in your payroll system.
Determine whether there are current employees that have returned to their jobs after deployment and make sure their “similar pay and status” were restored in accordance with USERRA.