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Protections Under the Uniformed Services Employment and Reemployment Rights Act


Uniformed Services Employment and Reemployment Act

The Uniformed Services Employment and Reemployment Act of 1994 (“USERRA”) was signed into law by President Bill Clinton to provide protections for the civilian employment of certain active and reserve military personnel. The law provides various protections to different types of military personnel, including but not limited to the right to be free from discrimination and retaliation by a civilian employer.

Who does the anti-discrimination and anti-retaliation provision apply to?

Under USERRA, an individual may be protected from a civilian employer’s discriminatory and/or retaliatory conduct if they are (i) a past or present member of the uniformed service; (ii) have applied for membership in the uniformed service; or (iii) are obligated to serve in the uniformed service. If an individual falls into one or more of these categories, then an employer cannot deny such individual initial employment, reemployment, retention in employment, promotion, or any benefit of employment because of their status.

An employer is also not permitted to retaliate against an individual because he/she has (i) taken action to enforce a USERRA protection; (ii) has testified or otherwise made a statement in or in connection with any USERRA proceeding; (iii) has assisted or otherwise participated in a USERRA investigation; or (iv) has exercised a right under USERRA. An employer also may not retaliate against anyone that attempts to assist such individual in enforcing his/her USERRA rights.

How are the USERRA discrimination and retaliation protections enforced?

If an individual believes he/she has been subjected to discrimination and/or retaliation due to his/her status, as previously described, then there are several options available for redress. An individual can file a written complaint with the U.S. Secretary of Labor, to include the name and address of the employer against whom the complaint is being filed and a summary of the allegations. The Secretary will subsequently notify the individual of his/her rights regarding the complaint. The Secretary will then investigate the complaint and determine if the alleged actions occurred. Upon concluding such investigation, the Secretary may proceed with ensuring that the person and/or entity against whom the complaint was filed, complies with the relevant USERRA provisions. If the Secretary does not resolve the complaint, the individual will receive notice of the Secretary’s decision, including the investigation results and notice of additional rights.

Furthermore, if the Secretary does not successfully resolve the complaint and/or if an aggrieved individual does not wish to submit a complaint to the Secretary or does not request the Secretary refer the matter to the Attorney General, then such individual may file a complaint in federal court. If the filing individual, i.e., the plaintiff, is able to successfully litigate his/her case and receive a ruling in his/her favor, then the potential remedies available may include (i) requiring the employer to comply with USERRA; (ii) requiring the employer to compensate the individual for any lost
wages or benefits; and/or (iii) requiring the employer to pay the individual an amount equal to the amount of lost wages and benefits as liquidated damages.

If you feel your employments rights under USERRA have been violated, or if you have any other questions regarding your employment rights, please contact the experienced Birmingham employment law attorneys at Michel | King. You can contact us either online or by calling us at (205) 319-9724. We are here to serve you.

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