Daniel D. Ware
Uniformed Services Employment and ReEmployment Rights Act of 1994 (USERRA)
The Uniformed Services Employment and ReEmployment Rights Act of 1994 or USERRA as it is commonly known is the protection that reserve soldiers receive when they are activated and/or return to employment after activation. This law was written to simply protect soldiers who are called out on active duty for the United States for duties.
This law is covered in 38 U.S.C. section 4301 et. al. This law assists soldiers when they suffer discrimination when they leave for duty, upon return from duty, and keeping their employment upon return to their jobs. The law is quite favorable to these claims. Depending on what statute you bring the claim, a presumption exists for the soldier that the employer has to prove it did not terminate the soldier due to military service. The purpose is to ensure that employers retain soldiers while having a military obligation to the U.S.
Besides the reemployment, a soldier should keep his or her seniority and benefits upon return. The soldier should not lose his or her seniority or position for the employer. The soldier needs to give the employer notice, preferably in writing, that he has been placed on orders stating when the soldier is leaving and should return if possible. The soldier has so many days to report back to the employer based on the length of time the soldier was activated. It is advisable to keep the employer updated since durations and orders for soldiers can always change.
If a lawsuit is required, the soldier is entitled to lost wages, emotional distress, attorney fees, and possibility punitive damages depending on the circumstances. Both private and governmental employers are covered under this law. As with many federal statutory rights, the soldier can bring suit in either state or federal court. If the state discriminates against the soldier, he or she can bring the case to state court to avoid 11th Amendment problems.
If a soldier is adversely affected by his or her activation, the soldier should seek legal help for thei termination.