Bench & Bar March/April 2025

FEATURE: MILITARY LAW

USERRA UNDERSTANDING The Uniform Services Employment and Reemployment Rights Act 38 U.S.C. 4301–4335 BY NICK HETMAN

A s the recently elected Commander of the James P. Yates American Legion Post 9, Owensboro, I am aware of a number of contacts made to our Service Officer regarding what rights a veteran has concerning employ ment discrimination resulting from their service. Even in 2024, returning veterans are still fighting—this time for fairness in reemployment. SHORT HISTORY Some of you may be unaware that job discrimination still exists in certain situ ations. In an effort to protect civilian job rights and benefits for veterans, in 1994, Congress passed USERRA, a federal law that not only protects military service members and veterans (members of the Armed Forces, Reserves, National Guard, and other uniformed services, including the National Disaster Medical System and the Commissioned Corps of the Public Health Service) from employment discrimination on the basis of their service, but also allows them to regain their civilian jobs following a period of service.

Prior to the enactment of USERRA, there was a long history of legislation protecting those who served in times of armed con flict. Initially, such legislation was passed primarily to protect those who were drafted to return to their pre-service jobs at the end of hostilities. In 1946, the United States Supreme Court held in Fishgold v. Sullivan Drydock , that such legislation allowed the reemployment of an employee drafted to serve. 328 U.S. 275, 284 (1946). As another example of such efforts, during the Cold War era, the Veterans’ Reemploy ment Rights Act (“VRRA”) was passed to protect reservists against reemployment discrimination caused by military service. Even with the long history of legislation passed to protect Veterans’ rights, dis crimination continued to raise its ugly head. In Monroe v. Standard Oil Co. , the United States Supreme Court addressed the required standard of proof necessary to be successful in bringing such matters and held that in order for a VRRA cases to pro ceed, the reservist must show the employer’s discriminatory action against the reservist was “motivated solely by reserve status.” 452 U.S. 549, 551, 559-560 (1981). As one might guess, that was an almost impossible stan dard to overcome.

As a result of that holding, USERRA was enacted and the standard changed to pro vide that the employee must now show that their military service was a “sub stantial” or “motivating factor” in the employer’s adverse employment action. In short, USERRA provides that a returning employee has the right to any advantage of employment that the veteran would have received (such as health insurance, retirement benefits, and seniority) had the veteran not been absent due to mili tary service. This would include prompt reemployment upon return from duty, seniority benefits that would have accrued during the veteran's absence, such as grade increases, rate of leave accrual, accrued time on probationary period, career tenure, flexible work schedules, location of employ ment, etc. It is important to note that although employers cannot discriminate against the service member, neither are they generally required to give preferential treatment to that service member. In fact, if a returning service member does not request reemploy ment in a timely manner, the employee may be disciplined in a manner consis tent with the way the employer normally

18 march/april 2025