USERRA AND VETERANS RETURNING FROM IRAQ AND AFGHANISTAN

Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), Reserve and National Guard members who leave their civilian jobs must be re-employed to the same position they would have had if their employment had not been interrupted by military service. They are entitled to all seniority and other rights and benefits determined by seniority that they would have attained if they had been continuously employed. For example, upon re-employment, a returning service member's rate of pay should include any seniority-based pay increases that occurred during the period of military service. 

Employee benefits are also protected when a service member is re-employed.  An employee who was covered by a health plan at work is entitled to immediate reinstatement upon re-employment.  Similarly, pension rights are protected upon re-employment.  

However, according to the U.S. Department of Labor, since the invasion of Iraq in 2003, it is estimated that nearly 9,376 veterans have lost their jobs in both the private and public sectors while serving a tour of duty.[1]  In fact, the Government Accountability Office (GAO) has estimated that more than 16,000 USERRA complaints were filed between 2004 and 2006. Those numbers are expected to increase as more soldiers return home.

Remedies available to service members whose USERRA rights have been violated include back pay, lost benefits, lost promotional opportunities, retroactive seniority, pension adjustments and restored vacation.  Where violations are considered willful, the court may double any amount due as liquidated damages. However, punitive damages are not allowed under USERRA.

In December 2007, Senators Ted Kennedy (MA), Daniel Akaka (HI) and Barack Obama (IL) proposed “The USERRA Enforcement Improvement Act” to strengthen federal enforcement of USERRA.  The bill imposes deadlines on federal agencies to assist service members seeking reinstatement to their former jobs. It also implements the recommendations of the GAO to reduce inefficiencies and improve the information collected by the government on these issues.   

It is clear that more USERRA litigation and government involvement is on the horizon as more veterans return from Iraq and Afghanistan. Jackson & Campbell’s Employment Law Practice Group can help you navigate through these complicated statutes and advise you on best practices with regard to USERRA rights and provide counsel on other related matters.  

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The contents of this Employment Law Alert are intended for general informational purposes only and should not be considered legal advice. Moreover, the mailing of this Employment Law Alert is not intended to create nor does it constitute an attorney-client relationship.

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