USERRA, Military Leave, and Military Related Family Leave

Written by Galen T. Shimoda and Justin P. Rodriguez

The honor and respect associated with serving one's country dates far back in this Nation's history. While joining the military may earn you some well-deserved thank yous from friends, family, and others in your community, there are some employers out there who are not as appreciative of your patriotism. Indeed, the time it takes away from work to serve in the National Guard, Army Reserves, or other branches of the military can be seen by your employer as an impediment to advancing your career. The tensions can be aggravated even more so when the time taken away from work is due to a family member's military status rather than one's own.

Left unchecked, the adverse consequences from potential discrimination and retaliation in employment due to military service would have a crippling effect on encouraging the Nation's best and brightest to serve. Fortunately, the United States Congress anticipated this problem a long time ago and has enacted legislation to protect employees who serve in the military. The latest version of these protective statutes is the Uniformed Services Employment & Reemployment Rights Act (USERRA). The basic premise of USERRA is to ensure an employee is provided their job upon returning from a tour of service and that they will be elevated to a position where they otherwise would have been had they not been engaged in military service. This is commonly referred to as the escalator principle.

The statutes not only protect you from termination or being laid off, but also if there was a wrongful demotion based on your military status. A person who has engaged in military service must be offered the same seniority and other benefits as their co-workers who are not in the military. Some specifics can include: 1) seniority; 2) pay scale adjustments; 3) eligibility for pension benefits; and 4) eligibility for increased payment under a severance plan. Thus, even acts that fall short of termination can qualify as a violation of USERRA. Employers also have a duty to accommodate you if you were injured during your military service that is more robust than typical disability anti-discrimination laws.

As is the case with other laws regarding an employee's leave of absence, the most important thing is communication. USERRA has particular notice requirement before deployment and upon returning from deployment in order for an employee to receive protection. But, do not become too stressed. USERRA does take into account situations such as short notice deployment and the amount of time it may take an employee to rehabilitate and return to work given the length of their deployment (e.g. thirty (30) days or less, one-hundred-eighty (180) days or less, or one-hundred-eighty-one (181) days or more). However, rather than base your communication on a technical reading of the law, when it comes to notice, more is better. Indeed, very often it has the potential to clear up any miscommunication or confusion that can lead to lawsuits.

Needless to say, USERRA is one of the most protective laws out there. It waives filing fees in court, provides for double damages in case of a willful violation by your employer, and provides for attorney's fees and costs. California has its own version of USERRA and applies it to State military personnel as well.

While USERRA focuses on the service member, the Family Medical Leave Act (FMLA) provides a service member's family the ability to take a leave of absence to deal with the realities and consequences of military service. If one is quailed for leave under the FMLA and has a family member who is in the military, they may be able to take leave to care for a wounded family member (sometimes for up to twenty-six (26) weeks), to attend an official ceremony or a funeral, to deal with childcare arrangements affected by the military leave, to make certain financial or legal arrangements prior to deployments, to attend family counseling necessitated because of the military leave, to accompany the service member who is on short term rest and recuperation leave, and for post deployment arrival ceremonies.

With the combination of USERRA and the FMLA, employees, whether they are in the military themselves or have family members in the military, can breathe easier knowing that there are protections for them. While this does not always prevent an employer from doing the wrong thing, employees are now equipped with a remedy.

If you think you may have potential claims relating to your employment or believe you have claims regarding USERRA or military related family leave, contact our office to have your claims evaluated.

The Shimoda Law Corp. legal articles should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents of these articles are intended for general information purposes only, and you are urged to consult a lawyer concerning your own situation and any specific legal questions you may have.

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