There are currently over 433,000 National Guard members across the United States. People who make up the National Guard are your neighbors, friends and family, and they hold civilian jobs in a wide variety of fields, such as teaching, nursing, legal, engineering, local law enforcement, construction, and emergency response. When asked, they answer the call to duty.
Over the last few months, National Guard members have been mobilized and deployed to support various efforts in states across the country. Based on recent news reports, mobilization of National Guard members to support efforts will likely continue into several more states over the next months. For these National Guard members who will answer the call to duty and must be absent from their civilian job, it is important they understand the employment protections they have under the Uniformed Services Employment and Reemployment Rights Act of 1994, often referred to as USERRA.
USERRA’s Purpose and Coverage
USERRA was enacted with the purpose of encouraging service in the uniformed services by establishing civilian career employment protections for those who serve. Among other important protections, USERRA prohibits an employer from discriminating against a service member based on their service or retaliating against a person for taking an action to enforce rights under USERRA. Additionally, it requires an employer to promptly reemploy a service member in their civil employment position at the conclusion of the member’s service obligations.
Since its enactment, the types of military service that qualify for USERRA’s protections have expanded. In 2021, amendments to USERRA expanded the definition of “service in the uniformed services” to cover a wider array of types of duties performed by National Guard members. In its current form, in addition to service authorized under Title 10 (Guard members in federal service) and Title 32 (federally funded National Guard domestic duty), USERRA protections cover State Active Duty for a period of 14 days or more, or service in support of certain national emergencies and/or major disasters.
Prohibition Against Discrimination and Retaliation under Section 4311
Among USERRA’s most important protections is its anti-discrimination provision. It prohibits an employer from discriminating against a service member with respect to:
- initial employment;
- retention in employment;
- promotion; or
- any benefit of employment.
This prohibition against employment discrimination is expansive and applies not only to those who currently serve, but to, “any person who is a member of, applies to be a member of, performs, has performed, or has an obligation to perform service in a uniformed service . . .” Thus, even a person who is not a service member, but who applies to be, would be protected under the Act from discrimination by his/her civilian employer for applying to be a service member.
An employer violates USERRA’s anti-discrimination provision if a person’s military status was a “motivating factor” in employer’s action (e.g., if the employer relied on, considered, or conditioned its decision on the service member’s status), and the employer would not have made the same decision absent the member’s protected status.
USERRA also includes a prohibition against retaliation, which prohibits employers from discriminating in employment or taking an adverse or other retaliatory action against a person who:
- has taken action to enforce protections under USERRA;
- testifies or makes a statement in any USERRA proceeding;
- participates in a USERRA investigation; or
- exercises a right under USERRA.
Importantly, USERRA’s prohibitions against retaliation provide protection to service members and non-members, alike. In practice, for example, this provision prohibits an employer from discriminating against or retaliating against a co-worker who testifies in support of a service member who takes action to enforce USERRA.
As with the discrimination provision, an employer violates USERRA’s anti-retaliation provision if the person’s action to enforce USERRA, testimony or statement in a USERRA proceeding, participation in a USERRA investigation, or exercise of rights was a motivating factor in employer’s action, and the employer would not have made the same action absent the person’s action, testimony, statement, or participation.
USERRA’s Reemployment Rights Provisions
Another major protection for service members under USERRA, including those in the National Guard, is reemployment following a period of covered service.
A person absent from a position of employment by reason of their service in the uniformed services “shall be entitled to reemployment rights.” Subject to some exceptions, generally, this entitlement is available to a service member if:
- the person gave advanced notice (written or verbal) of the service;
- the cumulative length of absences with that employer for service in the uniformed services does not exceed 5 years; and
- the service member requests reemployment within specific time periods following the completion of service.
Not only does USERRA entitle a service member to reemployment, but the Act requires that reemployment be “prompt.” Also, the reemployment provisions implement what has been referred to as the “escalator principle.” Under the escalator principle, the service member should be placed (i.e., reemployed) in the position of employment the service member would have held – including benefits, promotions, and pay – had the service member not been called to duty.
USERRA provision’s prohibiting discrimination and retaliation, and requiring prompt reemployment following a period of service are only a few of the protections guaranteed under the act. If you have questions about whether you or your service obligations are covered by USERRA, or if you believe your employer has violated your employment rights under USERRA, you may contact KCNF for a consultation regarding your situation and enforcement options.