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USERRA: The Toothiest Fed Employment Law You Never Heard of

By Jonathan R. Tung, Esq. on February 10, 2016 | Last updated on March 21, 2019

We recently wrote a short piece reminding in-house counselors of the general federal employment laws they should be familiar with. Now, some recent cases at the Federal District level has prompted us to add another to that list: The Uniformed Services Employment and Reemployment Rights Act of 1994, aka USERRA.

Here are a few pointers concerning liability under USERRA.

What Is USERRA?

USERRA, codified as 38 U.S.C. secs. 4301-4335, allows military personnel and former military personnel to sue employers and actual employers for discrimination and adverse employment actions based on their military status. In effect, it recognizes military service and status as a protected class and gives this class standing. Therefore, not everyone can sue under USERRA.

Things to Know

  • USERRA Covers All Employers: USERRA complainants can sue any employer, no matter how big or small, public or private. "[A]n employer with only one employee is covered..." 20 C.F.R. sec. 1002.34.(a).
  • Personal Liability: According to the federal court in Bello v. Village of Skokie, USERRA gives military plaintiffs the power to sue his or her employer personally for acts that were taken in accordance with official business actions. In other words, employees of an employer who discriminate on the job are liable personally under USERRA. This is perhaps USERRA's most important provision.
  • No Statute of Limitations: There is no statute of limitations to bring a suit. The cause of action could have occured 15 days ago, or 15 years ago. See the case of Mock v. City of Rome where the time in question was 18 years...
  • Protections for Discharge: "Cause" is highly regulated and plaintiff friendly under USERRA. The times that are given to veterans to settle in after they deliver a "for cause" reason to discharge them range from between 6 months to a full year. Plus, the employer is obligated to give the employee essentially a list of all the behaviors that would trigger a "for-cause" termination. 20 C.F.R. sec. 1002.248(a).
  • Possible Entitlements to Promotions: The law also requires that a returning military employee be placed in the position that he would have been had he not been a veteran. Therefore, making him "whole" might require not only a re-hiring, but a promotion and raise as well.

Tread Lightly

It cannot be overemphasized how expansive and potentially onerous USERRA is for employers who are not familiar with every angle of the Act. It's not a bad idea to become familiar with USERRA to avoid unnecessary legal issues with employees.

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