USERRA Protects Military Personnel's Right To Reemployment

April 1, 2012

With many active uniformed officers returning to the United States and hoping to return to their previous employment, many military personnel wonder about their rights to reemployment when returning from serving in the military.

Fortunately, federal anti-discrimination law protects armed service members. Called the Uniformed Services Employment and Reemployment Rights Act (USERRA), USERRA provides that most military personnel must be returned to their jobs when returning from serving in the military, and it also prohibits discrimination based on an employee's military service.

The USERRA defines the term "Uniformed Services" broadly, and applies to members of the Army, Navy, Air Force, Marines, Coast Guard, and Public Health Service commissioned corps, as well as reservists in each of each of these branches. Whether a returning service member is entitled to protection depends on each case, but generally requires that the individual meet the following five circumstances:

1. That he was in a civilian job;
2. That he gave notice that he was leaving the job to performed uniformed service;
3. That the period of service was five years or less;
4. The service member did not receive a dishonorable discharge; and
5. The service member reported back for work in a timely fashion.

If you have questions concerning the USERRA or your rights to return to your previous employment it is important to discuss these with a knowledgeable Atlanta uniformed services reemployment lawyer.

Whether your job is covered by USERRA may be complex. However, an experienced reemployment lawyer can provide you critical guidance. Recent case has determined that the USERRA applies to state agencies. In United States v. Alabama Dep't of Mental Health & Mental Retardation, 11th Cir., No. 10-15976, 3/16/12), the11th Circuit Court of Appeals determined that an Alabama National Guard member, Roy Hamilton, who was deployed to Iraq, could sue an Alabama state mental health agency that had employed him. When Hamilton was honorably discharged in 2005, he sought reemployment with ADMH, but the agency failed to contact him. The ADMH objected, arguing that they were immune from the federal lawsuit. The court of appeals disagreement, explaining USERRA “gives the federal government—and not individuals—the right to sue states in federal court to enforce federal law.” Further, even though the U.S. government brings USERRA actions on behalf of private individuals, because the Federal Government has a significant interest in encouraging service in the armed service, these lawsuits are not considered “private actions masquerading in costume” that would violate state’s sovereign immunity.

As a result, the court determined that the ADMH violated Hamilton’s rights when it failed to offer him reemployment.

For more information about USERRA, or if you believe your rights to reemployment have been violated, please contact the dedicated Georgia reemployment lawyers at The Buckley Law Firm, LLC for an immediate consultation.