18. What anti-discrimination protections exist for employees who are also military service members?
The Uniform Services Employment and Reemployment Rights Act (USERRA) protects the rights of service members in the military reserves or state national guards from discrimination based upon their military service obligations. Specifically, the law protects the rights of individual who voluntarily or involuntarily leave their employment to undertake military service or certain types of service in National Defense Medical System. It prohibits public and private employers from denying “initial employment, reemployment, retention in employment, promotion, or any benefit of employment based on current, past, or present obligations flowing from military service.” The general requirements for protection under USERRA are as follows:
• the individual must hold a job outside of the Armed Forces or NDMS (a civilian job);
• the employee volunteers or is called to participate in mobilization (such as training, activation, or deployment), on a temporary basis, with the Armed Forces of National Defense Medical Service;
• the employee must inform her employer that she is leaving the position pursuant to the mobilization;
• the period of service must be under “honorable conditions”; and
• the individual must report back to the civilian employer in a timely manner regarding the mobilization and, if necessary, submit a timely application for reemployment.
The USERRA not only establishes re-employment rights but also protects individuals from retaliation (such as firing, demotion, etc.) for exercising their rights under USERRA. This includes protections for those reporting (or testifying against) an employer for violating USERRA. Covered employees can also elect to continue their employer-based health insurance for up to 24 months of the mobilization. If an employee does not continue her health coverage or coverage is lost, the employee may apply to the employer health insurance program without waiting periods or exclusions and request to be reinstated upon return from deployment. As with many other employment laws, the DOL requires that certain employers display notices of USERRA rights for employees. Individuals discriminated against may bring a private action against the employer or file a complaint with the US Secretary of labor.
• Discussion: Why do you think the Government established USERRA? Can you think of any arguments against enforcing these provisions? Should there be any exceptions to these rules? Why or why not?
• Practice Question: Thomas is a member of the Georgia National Guard. His unit has been called to active duty and will be mobilized to serve as the garrison support unit for Fort Sill, Oklahoma. This will require Thomas to leave his employment for 12 consecutive months. What are Thomas’s rights in this situation?