Veterans Benefits Improvement Act of 2004
30 June 2006Uniformed Services Employment and
Reemployment Rights Act (1994)
(as amended by the Veterans Benefits Improvement Act of 2004),
38 U.S.C. §§4301 et seq.
Coverage and Prohibition: The Uniformed Services Employment and Reemployment Rights Act (“USERRA”) applies to all employers. The Act replaces the Veterans’ Reemployment Rights Act and the Military Selective Service Act and prohibits employers from discriminating in employment and from retaliating against any person for reasons related to past, present, or future service in a “uniformed service.” The USERRA statute defines covered service to include voluntary and involuntary active duty, active duty for training, initial active duty for training, inactive duty training, and full-time National Guard duty. Covered service also includes any absence needed to perform funeral honors duty or for an examination to determine whether a person is fit to perform military duty. The “uniformed services” are the Armed Forces and their reserves, the Army and Air National Guards during active and inactive duty training or full-time National Guard duty, the Public Health Service commissioned corps, and others that the President may designate during war or emergencies. The USERRA provides that an employer must grant a leave of absence for up to five years to any person who is absent from a job because of service in the uniformed services, and that the employer usually must reinstate the veteran to the position he would have held if his employment had not been interrupted by military service, or to an equivalent position. In addition, employees taking military leave are entitled to continue their health insurance coverage (generally at their own expense) for up to 24 months.
After completing military service, the veteran must notify the pre-service employer that he intends to return to work. Different notification periods and reinstatement rights apply, depending on the length of military service. The Act also protects returning veterans from discharge without cause for a period of time after reemployment, except for veterans whose service was for less than 31 days.
Organizations are not required to reemploy returning veterans if: (1) the employee’s pre-service employment was “for a brief, nonrecurrent period” and there was no reasonable expectation of employment that would continue indefinitely or for a significant period; (2) the employer’s circumstances have changed so that reemployment would be unreasonable or impossible; or (3) the employment of a veteran with a service-incurred or aggravated disability would cause undue hardship to the employer after reasonable efforts to accommodate the disability. Furthermore, an individual’s rights under the USERRA cease if the person is separated from military service with a dishonorable or bad conduct discharge.
Enforcement: The Act is administered by the Department of Labor. Individual employees may ask the Secretary of Labor to conduct investigations. If efforts at voluntary settlement with a private employer are unsuccessful, the Secretary may refer the case to the Attorney General. Civil suits may be filed by the Attorney General or individual aggrieved employees.
Remedies: An employee may recover actual monetary losses, such as back pay and benefits, as well as equitable relief, such as injunctions. An employee also may recover an additional amount equal to the employee’s actual losses if the violation is determined to be willful. Attorneys’ fees, witness fees, and costs may also be awarded.
Related Regulations:
Department of Labor, Veterans’ Employment and Training Service: Proposed Rules Under USERRA, 69 Fed. Reg. 56,265 (2004) (to be codified at 20 C.F.R. Part 1002) (proposed Sept. 20, 2004).
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