Federal and California State Law provide veterans with reemployment rights whose absence from their job is caused by recall to active duty service in the uniformed services. The Uniformed Services Employment and Reemployment Rights Act of 1994 [“USERRA”] and California Military and Veterans Code §394, et seq., protects most individuals who have served in the armed forces, reserves and applies to both private employers and governmental agencies.
Who is eligible for reemployment?
Reemployment rights extend to persons who have been absent from a position of employment because of "service in the uniformed services." “Service in the uniformed services” means the performance of duty on a voluntary or involuntary basis in a uniformed service, including:
• Active duty
• Active duty for training
• Initial active duty for training
• Inactive duty training
• Full-time National Guard duty.
• Absence from work for an examination to determine a person’s fitness for any of the above types of duty.
• Funeral honors duty performed by National Guard or reserve members
The “uniformed services” consist of the following:
• Army, Navy, Marine Corps, Air Force, or Coast Guard.
• Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, or Coast Guard Reserve.
• Army National Guard or Air National Guard.
• Commissioned Corps of the Public Health Service.
• Any other category of persons designated by the President in time of war or emergency.
To be entitled to the reemployment rights and other employment benefits certain criteria should be met:
•The person (or an appropriate officer of the uniformed service in which such service is performed) has given advance written or verbal notice of such service to such person's employer; •The cumulative length of the absence and of all previous absences from a position of employment with that employer by reason of service in the uniformed services does not exceed five years; and •The person reports to, or submits an application for reemployment to, such employer.
Employers must make reasonable efforts to qualify returning service members who are not qualified for reemployment positions that they otherwise would be entitled to hold for reasons other than a disability incurred or aggravated by military service.
Employers must provide refresher training, and any training necessary to update a returning employee’s skills in situation where the employee is no longer qualified due to technological advances. Training will not be required if it is an undue hardship for the employer, as discussed below.
If reasonable efforts fail to qualify a person for the first and second reemployment positions in the above schemes, the person must be placed in a position of equivalent or nearest approximation and pay that the person is qualified to perform (the third reemployment position in the above schemes).
The law specifies that returning service members be “promptly reemployed”. What is prompt will depend on the circumstances of each individual case. Reinstatement after weekend National Guard duty will generally be the next regularly scheduled working day. On the other hand, reinstatement following five years on active duty might require giving notice to an incumbent employee who has occupied the service member’s position and who might possibly have to vacate that position.
Rights of reemployed persons
Reemployed service members are entitled to the seniority and all rights and benefits based on seniority that they would have attained with reasonable certainty had they remained continuously employed.
A right or benefit is seniority-based if it is determined by or accrues with length of service. On the other hand, a right or benefit is not seniority-based if it is compensation for work performed or is subject to a significant contingency.
Employment discrimination because of past, current, or future military obligations is prohibited. The ban is broad, extending to most areas of employment, including:
• termination; and
The law protects from discrimination past members, current members, and persons who apply to be a member of any of the branches of the uniformed services.
Previously, only Reservists and National Guard members were protected from discrimination. Persons with past, current, or future obligations in all branches of the military are also protected including Reservists and National Guard members.
Individuals have the option to privately file court actions:
Award of back pay or lost benefits may be doubled in cases where violations of the law are found to be “willful”. “Willful” is not defined in the law, but the law’s legislative history indicates the same definition that the U.S. Supreme Court has adopted for cases under the Age Discrimination in Employment Act should be used. Under that definition, a violation is willful if the employer’s conduct was knowingly or recklessly in disregard of the law.
The law, at the court’s discretion, allows for awards of attorney fees, expert witness fees, and other litigation expenses to successful plaintiffs who retain private counsel. Also, the law bans charging of court fees or costs against anyone who brings suit.
The Law Office of Joseph R. Haytas:
If you have been denied re-employment based upon military service and seek advice and counsel from a private Employment Law Attorney please contact the Law Office of Joseph R. Haytas. The employment law firm of Joseph R. Haytas can assist you if you have been wrongfully denied employment opportunities because of your military service. Each case is unique. Joseph R. Haytas will meet with you personally about your matter and explore with you any and all options you may have under your particular circumstances.
The Law Office of Joseph R. Haytas