• Federal Law Safeguards the Employment Rights of our Nation’s Finest
  • October 7, 2011 | Authors: S. Luke Craven; Thomas Henderson
  • Law Firm: Whitfield & Eddy, P.L.C. - Des Moines Office
  • With a large number of Iowa’s Soldiers, Sailors, Airmen, and Marines being deployed for military service, their employment rights are being brought to the forefront of everyday life.

    Federal law provides protection to these service members, but it is up to the individual service member and employer to know their specific rights upon deployment or activation as well as upon their return.  The employment and reemployment rights of service members and veterans are protected by federal statute.  The statute is commonly referred to as USERRA, which stands for Uniformed Services Employment and Reemployment Rights Act.  Congress passed this law in order to:  (1) encourage non-career service in the military; (2) minimize the disruption to employers and employees that results from deployment, and (3) prohibit discrimination against service members. USERRA protects service members from workplace discrimination and/or retaliation based on the service member’s affiliation or military service.  USERRA also requires employers to place individual service members and veterans back to work in their civilian jobs after their military service is complete.

    USERRA covers members of the Armed Forces, the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty, the commissioned corps of the Public Health Service, and any other category of persons designated by the President in time of war or national emergency.  Entitlement to the benefits under USERRA can be terminated by the service member in any one of the following ways: (1) separation from the uniformed services with a dishonorable or bad conduct discharge; (2) separation from the uniformed services under other than honorable conditions; (3) dismissal from service; or (4) being dropped from the rolls of the given service.  Entitlement to the benefits of USERRA is not determined by the fact that the service member holds only a part time, probationary, temporary, or seasonal employment position.

    Simply stated, USERRA applies to all public and private employers in the United States, regardless of size.  Additionally, the law applies to foreign employers that do business within the United States, and American companies that operate in a foreign country unless it is contrary to the foreign country’s law.  These employers are prohibited from either discriminating or retaliating against a service member.  In other words, employers cannot hold an employee’s service against the employee.  Similarly, an employer cannot retaliate by taking any adverse employment action against the service member because the service member has taken an action to enforce his or her rights under USERRA.

    USERRA provides significant protection to service members in terms of reemployment.  In order to qualify for protection under USERRA the following criteria must be met, subject to specific and important qualifications and exceptions:  (1) the employer must have been given advance notice of the employee’s service; (2) the employee has five years or less of cumulative service in the uniformed services in his or her employment relationship with the particular employer; (3) the employee timely returns to work or applies for reemployment; and (4) the employee has not been separated from service with a disqualifying discharge or under other than honorable conditions.  USERRA does create certain exceptions through which the pre-service employer is excused from its obligation to reemploy the service member following a period of uniformed service.  These exceptions are considered “affirmative defenses,” and the burden of proving each defense rests on the shoulders of the employer.

    An individual who reasonably believes that his or her rights have been violated under USERRA has three main options which include:  (1) contacting Employer Support Guard and Reserve, commonly referred to as ESGR, which will attempt to amicably resolve the potential issue between the individual and the employer; (2) file a complaint through the Department of Labor Veterans’ Employment and Training Service, commonly referred to as DOL VETS; or (3) proceed to civil litigation.  These options are not mutually exclusive and individuals are urged to utilize both ESGR and DOL VETS prior to filing suit.  The staff and attorneys of Whitfield and Eddy are another resource available to employers and service members alike.  Throughout its long history, the law firm of Whitfield and Eddy has demonstrated a commitment to the United States Armed Forces, the brave men and women who serve, and the employers who provide jobs to those men and women.  During World War II, the majority of Whitfield and Eddy attorneys served on active duty in the armed forces.  Today, no fewer than nine of Whitfield and Eddy’s attorneys and staff have served in the armed forces.  This rich history provides Whitfield and Eddy with unique insight into those laws safeguarding the rights of service members.  The staff and attorneys of Whitfield and Eddy are keenly aware that USERRA is intended to not only protect the employer/employee relationship, but to ensure that service members are afforded the rights they have sacrificed so much to preserve and defend.