UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT ACT

Over the coming months and years as the United States shifts its military focus from Iraq to Afghanistan, more of America's employees will be involved in active military service or returning home from military service.

Employers must be aware of certain federal laws which protect an active service member's employment while in active service and upon returning to work. One such law is the Uniform Services Employment and Reemployment Rights Act of 1994, otherwise known as "USERRA." USERRA was passed by Congress and signed into law by President Clinton in 1994.

Under USERRA, an employer may not discriminate against a covered individual who is a member of a "uniformed service," applies to be a member of a "uniformed service," performs or applies to perform, or has obligations to perform services in a "uniformed service."

Under its terms, USERRA prohibits discrimination in employment decisions, reemployment decisions, retention decisions, employment, promotion or any benefit of employment. If the employee's involvement in military service is found to be the "motivating factor" behind the employer's adverse employment decision, the employer is guilty of violating USERRA and subject to a claim for damages.

An employer may avoid liability under USERRA if the employer can prove that he would have taken the same action in the absence of service, application for service or obligation for service. USERRA applies to all employers, regardless of size, including federal and state governments and their political subdivisions. USERRA applies to individuals who miss work because of "service in the uniformed services" or who have been separated from service under honorable conditions.

"Uniformed services" includes the Armed Forces, the Army and Air National Guard, the commissioned corps of the Public Health Service and any other category of individual designated by the President in a time of war or emergency. "Service" includes voluntary and involuntary duties, active duty, active training, initial active duty training, inactivity duty training, full time National Guard duty or absence from work for physical examinations for performance of duties.

USERRA also prohibits the employer from retaliating against any individual who exercises his or her rights under USERRA, who testifies or makes a statement in connection with any proceeding under USERRA or has participated in any investigation. The anti-retaliation provisions of USERRA also apply to individuals who have not actually served in the uniformed services.

USERRA also has several timing provisions under which the employer must reemploy the service person within a given period of time, depending on their length of military service. USERRA also mandates that the service member may only be terminated from his or her employment for cause once reemployed during a certain period of time based upon the service member's length of service.

If an employer is found guilty of violating USERRA, the employer may be required to provide compensation for lost wages and benefits suffered by the employee and, in the case of willful violations, liquidated damages in an equal amount to the actual damages. In addition, the successful litigant may be awarded reasonable attorneys' fees, expert witness fees and other litigation expenses. USERRA specifically provides that no fees or court costs may be taxed against the plaintiff.

In summary, USERRA is a broad employment protection act designed to encourage individuals to participate in military service. An employer must not take any adverse employment action against an employee because of his or her military service. Employers must be aware of USERRA and its provisions when dealing with employees engaged in military service.