November, 2017


 In honoring our veterans this November 11th, it is important to note that employees who serve our nation in the armed forces have a certain employment protected status.

Under the Uniformed Services Employment and Reemployment Rights Act of 1994, (“USERRA”), 38 USC §4301 et seq., it is unlawful for a public or private employer, regardless of size and including the federal government, to refuse an employee’s military leave of absence, or to discriminate in employment or reemployment based on military service, including non-career service.

The Act applies to service in the Army, Navy, Air Force, Marine Corps and Coast Guard, including reserve and National Guard or Air National Guard, as well as Commissioned Corps of the Public Health Service.

Such “service” protected includes non-paid leaves of absence for active duty, inactive duty training, full-time National Guard duty, absence from work for an examination to determine a person’s fitness for duty, and funeral honors duty by National Guard or reserve members.

USERRA limits the cumulative amount of military leave that an employee can take to five years. However, there are certain categories of service which are exempt from that five-year limitation.  One exception is provided for the two-week annual training sessions and monthly weekend drills mandated by statute for Reservists and National Guard Members.

USERRA’s reemployment obligations reflect the “escalator” principle that returning service members must receive the seniority, status and pay they would have received if they had remained continuously employed.  If a person has been absent for military service for 91 or more days, an employer may delay treating the person as not having incurred a break in service for pension purposes until the person submits satisfactory documentation establishing reemployment eligibility.

Adverse employment actions are not limited to discharge.  Employers must ensure that employees on military leave are not denied any “benefits of employment.”  For example, in Allen  v. United States Postal Service, 142 F.3d 1444 (Fed. Cir. 1998), an employee on military leave was not notified of a promotion that he would have been entitled to bid for if he was working at the time.  Instead, the promotion went to another employee with lesser seniority.  By not allowing the employee to bid for the promotion, the employer violated USERRA.

Regarding enforcement, it is important to note that USERRA is unique in that there is “no limit on the period for filing” a complaint or claim under the Act.  Employers can be sued by the government (Veterans’ Employment and Training Service of the Department of Labor or by employees in a private right of action.

An award of back pay or lost benefits may be doubled in cases where violations of the law are found to be “willful,” i.e., knowing or reckless disregard for the law.  In addition, awards of attorney fees, expert witness fess, and other litigation expenses may be made at the court’s discretion.

In a case of first impression, the Connecticut Appellate Court ruled that state courts have concurrent jurisdiction with federal courts in the enforcement of USERRA.  O’Toole v. Eyelets for Industry, 148 Conn.App. 367 (2014).


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