By: Attorney Harper Hutson

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law enacted in 1994 that expanded job protections for service members and veterans. USERRA prohibits public and private employers from discriminating against employees because of their military service. Congress had three main objectives when enacting USERRA:

1. to ensure service members are not disadvantaged in their civilian careers because of military service,
2. to minimize disruption to the lives of servicemembers and to their employers by providing prompt reemployment, and
3. to prohibit discrimination against service members.

Who is Covered Under USERRA?

USERRA protects members of the Armed Forces, Reserve, National Guard when engaged in training or full-time National Guard duty, the commissioned corps of the Public Health Service, and other persons designated by the President in times of war or emergency. USERRA protections apply to current service members, veterans, and those who intend to serve in the future. USERRA does not apply to National Guardsmen who are called up by the state for disaster relief or riots – state law may provide employment protections.

Discrimination and Retaliation Protection

USERRA protects employees from discrimination due to military service. Employers cannot deny an employee initial employment, reemployment, retention, promotion, or other employee benefits due to an employee’s military service. Service members are entitled to all employee benefits that the employer typically gives to non-military employees who are on furlough or take a leave of absence. Employers are prohibited from requiring employees to exhaust their vacation or leave during their time away for military service.

If a service member or veteran attempts to enforce a protection under USERRA, the employer cannot retaliate against them by taking an adverse employment action, such as demotion or termination. This non-retaliation provision also applies to anyone assisting the employee in enforcing USERRA protection, including testifying or making a statement, even if the person assisting has never served in the military.

Reemployment

Service members have the right to be reemployed in their civilian job if they leave that job to perform voluntary or involuntary military service. To be eligible for reemployment under USERRA, service members must meet five criteria:

• Be absent from their civilian job for military service reasons,
• Give advance notice of their absence to their civilian employer,
• Have less than five years of cumulative military service while with that particular employer,
• Return to work or apply for reemployment within a reasonable timeframe after conclusion of service, and
• Not be separated service for any reason other than honorable conditions.

Service members are entitled to be reemployed in the position they would have attained but for military service, with the same seniority, status, and pay. Courts consider six factors when evaluating whether an offered position is similar to one that would have been obtained, in addition to mere seniority:

• Opportunities for advancement,
• General working conditions,
• Job location,
• Shift assignment,
• Rank, and

If a returning employee who incurred a disability or had a previous disability aggravated by service is no longer able to work the position in which they would have been employed but for the military service, the employer must make reasonable efforts to accommodate their disability. If no accommodation for that position can be reached then the employee must be reemployed in an equivalent position of like seniority, status, and pay. If there is no equivalent position, then the employer must reemploy the employee in a position that is the next closest in terms of seniority, status, and pay.

How to Bring a USERRA Claim

If an employee believes their USERRA rights have been violated they can file a complaint with the Department of Labor, Veterans Employment and Training Services (VETS). VETS will investigate and attempt to resolve the complaint. If VETS is unsuccessful in resolving the complaint, the employee can request that the Department of Justice or the Office of Special Counsel (depending on the type of employer) represent them.

Employees also have the option to bypass the VETS complaint process and move straight into a civil lawsuit in state or federal court if the employer is a state, local, or private employer. USERRA claims are not subject to any statute of limitations. If you read this article and thought that this sounds like your work situation, give us a call to see if we can help.

*Disclaimer: This article is intended to inform service members, prospective service members, and veterans that they have federally protected employment rights due to their military service. This is an overview of USERRA and does not include every nuance or exception (otherwise this would have been a very boring read!). Please consult with an attorney to see if your circumstances invoke the protections of USERRA or other applicable statutes.

By: Attorney Jacob Modla

“AT-WILL” EMPLOYMENT DEFINED

In South Carolina and North Carolina, the relationship between an employee and his employer is “at-will”. “At-will” employment means an employer is free to terminate an employee at any time for any reason, including a good reason, a bad reason, or no reason. The only exception is that an employee cannot be fired for an illegal reason. “At-will” employment also means an employer can change the terms of the employment relationship with no notice and no consequences. For example, the employer can reduce your pay, change your scheduled work time or shift, or reduce the amount of vacation time offered.

EXCEPTIONS TO “AT-WILL” EMPLOYMENT

1. Employees with employment contracts: The “at-will” employment relationship can be modified when a contract of employment is entered into between the employee and his employer. Employment contracts can provide for a specific length or term of employment, for example a two-year employment period; or the employment contract may only allow for termination of the employee for “cause”. “Cause” typically includes reasons such as poor performance, employee misconduct, or economic struggles of the employer. If an employer terminates an employee in violation of one of the provisions of the employment contract, the employee can challenge the termination in a breach of contract lawsuit.

2. Termination in violation of public policy: Some “at-will” employees who are terminated can challenge their employer’s decision if the reason for the termination violated public policy. Terminations that violate public policy include: 1) an employee terminated for refusing their employers order or directive to do something that violates state law, for example an employers request that an employee lie to an OSHA inspector; 2) an employee terminated for reporting a violation of the law by their employer, for example reporting an employers fraudulent sales practices or use of child labor; or 3) exercising a statutory right, for example filing a claim under the state worker’s compensation laws.

3. Illegal Discrimination: Federal and state discrimination statutes prohibit employers from making termination decisions based on an employee’s race, color, religion, sex, pregnancy, national origin, age, disability, or veteran status. These laws protect workers from being terminated because of their membership in these protected classes. In other words, Pete’s boss can fire him because he failed to follow safety rules in the manufacturing plant, but Pete’s boss cannot fire him because he is African American.          

4. Retaliation: Retaliation is another statute-based exception to “at-will” employment. Federal and state law protect employees who are fired in retaliation for engaging in protected activities. Protected activities include being a witness or testifying on behalf of another employee in their discrimination lawsuit, reporting minimum wage or overtime pay violations, engaging in union activities, or engaging in concerted activities- two or more employees going to management and complain about working conditions.

The employment lawyers with Cromer Babb & Porter are available in South Carolina and North Carolina to help you review the facts of your termination and determine if you can sue your employer for an illegal termination.