Employment and Labor
USERRA and VEOA
The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that provides protections and other benefits for persons serving in the U.S. Armed Forces, Reserves, National Guard, or any other uniformed services who take a military leave of absence from a civilian job. Employees who leave their civilian jobs for military service are entitled to return to their jobs, with seniority, within five (5) years of service. Employers are also generally required under USERRA to maintain benefits and healthcare plans during the employee’s military service period as though the employee never left. USERRA applies to all federal, state, local, and private employers within the U.S. and its territories. USERRA also applies to foreign organizations operating within the U.S. as well as U.S. employers operating in foreign countries.
USERRA also provides protection for disabled veterans by requiring employers to make efforts to accommodate those disabilities. Further, USERRA also protects persons who serve or have served in the U.S. Armed Forces, Reserves, National Guard or any other uniformed services from employment discrimination such as hiring, promotion, reemployment or any other employment benefit such as medical and pension. USERRA prohibits retaliation against anyone who exercises his or her rights, or assists another’s rights, under USERRA. In addition, USERRA ensures that persons are not discriminated against in employment based on past, present, or future military service.
USERRA also requires that employees serving military duty provide advance written or verbal notice to their employers for all military duty unless giving notice is impossible, unreasonable, or precluded by military necessity. Employees serving military duty should provide notice as far in advance as is reasonable under the circumstances. Additionally, employees are able (but are not required) to use accrued vacation or annual leave while performing military duty. There is generally no statute of limitations for a USERRA claim. An employee can file a USERRA claim against his or her employer with the Department of Labor (DOL). Should an investigation not result in a resolution, the matter may be referred to the Office of Special Counsel (OSC) or taken to court. Federal and Postal Service employees may be able to appeal the action to the Merit Systems Protection Board (MSPB).
If a federal agency advertises a vacancy and accepts applications outside its workforce, the Veterans Employment Opportunities Act (VEOA) allows eligible veterans to compete for those vacancies under the federal agency’s competitive or merit promotion process. The VEOA does not guarantee selection but does guarantee eligible veterans the right to apply and compete. A VEOA eligible candidate who is selected will be given a career or career-conditional appointment.
VEOA eligibility applies to Veterans’ Preference veterans based on various considerations, including dates of active duty service, receipt of a campaign badge, Purple Heart, or a service-connected disability. VEOA eligibility can also apply to service personnel who have been separated from the armed forces for three (3) or more years of continuous active service under honorable conditions.
Under VEOA, an affected veteran can file his or her complaint with the Department of Labor (DOL). If the DOL does not resolve the complaint, then the individual can file an appeal with the MSPB.
We Can Help
Men and women who serve in the military should not return home from a military leave of absence to find that they no longer have jobs at their place of employment or are being discriminated against either for a disability or for serving their country. If you believe that your USERRA or VEOA rights have been violated, please contact Berry & Berry, PLLC to schedule a consultation with an attorney to discuss your case.