USERRA

Uniformed Services Employment and Reemployment Rights Act

Uniformed Services Employment and Reemployment Rights Act – USERRA basics

Uniformed Services Employment and Reemployment Rights Act – USERRA basics

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is federal law that protects both Oregon and Washington service members/employees. USERRA provides reemployment rights to returning Oregon and Washington veterans and other members  of uniformed services. Under USERRA when a service member leaves his/her Oregon or Washington civilian job for military service the employer is required to return to the service member to his/her job with accrued seniority if the eligibility requirements set forth under USERRA are met.

Eligibility requirements for reemployment under USERRA

A service member is eligible for USERRA reemployment following a period of military service if:
    •  The service member leaves to perform military service, and

    •  The service member ensures that your employer receives advance written or verbal notice of your service;

    • Any leave the service member took from this employer was cumulatively five years or less

    • The service member returns to work or apply for reemployment in a timely manner after conclusion of service; and

    • The service member has not been separated from service with a disqualifying discharge or under other than honorable
      conditions.

Reemployment rights under USERRA

A service member/employee working in Oregon or Washington who satisfies the eligibility requirements under USERRA is entitled to prompt reemployment when military service ends. In addition, USERRA requires the reemployment to place the Oregon or Washington service member at the same seniority status and pay as the service member/employee would have attained but for the military service obligation.

Reinstatement rights for disabled service members – USERRA

An employer must provide reasonable accommodations for an employee who suffers an injury or disability or whose disability  becomes aggravated during the period of military service. Employers must make reasonable efforts to help disabled service member/employees returning from service become qualified to perform the duties of the job they would have attained had  they been continuously employed. If a particular disability cannot be accommodated, the employer must reemploy the  returning disabled veteran in a comparable position that provides like seniority, status, and pay. An employer who does not provide appropriate accommodations to a returning disabled veteran will be liable for violating USERRA laws.

There likely is cross over between USERRA and the ADA (Americans with Disabilities Act). So a returning service member who was disabled during military service should look to both laws to determine whether they have claims under either USERRA or the ADA, or both.

Rights and protections under USERRA besides reemployment

USERRA also prohibits Oregon and Washington employers fro discriminating against employees because of their service in the National Guard, Armed Forces or any other uniformed service. For instance, Oregon and Washington employers  are prohibited from firing, failing to hire, or denying employment benefits to an employee because of the employee’s membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services.

Employers in Oregon and Washington are also prohibited from retaliating against an employee who files a complaint under USERRA, testifies in a USERRA proceeding, participates in a USERRA investigation, or exercises a right under USERRA.

Who must prove the USERRA claim to win benefits USERRA law?

To prevail in a USERRA case, an employee must prove that it is more likely than not (“preponderance of the evidence standard) that the employee’s military service was a motivating factor in the employer’s decision to take an adverse employment action (the discrimination) against the service member/employee. If the employee shows that the employer used military service as a reason to discriminate against the service member/employee, then he/she will prevail on a discrimination claim under USERRRA unless the employer can prove that it would have taken the same adverse action in the absence of the service member/employee’s military service.

What can a service member/employee win in a USERRA lawsuit?

If the service member/employee wins their USERRA discrimination claim, he/she can recover back pay, front pay, lost benefits, litigation costs, and reasonable attorney fees.

How to file a USERRA discrimination complaint

Service member/employees who believe they were discriminated against on the basis of their military service may file a complaint alleging the USERRA claims directly in court. The service member/employee may also choose to file an administrative claim with the government asserting the USERRA discrimination. An employee who chooses not to file with the Department of Labor or is refused legal representation by the Attorney General, can still file a private action in federal court for  their USERRA discrimination claim. At trial, the service member/employee is entitled to have a jury decide their USERRA claim. USERRA is one of the most powerful employee friendly statutes available. USERRA does not contain the burden  shifting that other discrimination claims use. Therefore, USERRA is much more employee friendly. USERRA also does not  contain a statute of limitations and expressly prohibits the application of state statutes of limitation on USERRA
claims. If you worked in Oregon or Washington and believe your USERRA rights have been violated or have questions  about how USERRA can help Oregon and Washington employees, contact the employment lawyers at Schuck Law, LLC at (360) 566-9243  or by email at questions@wageclaim.org.

Oregon and Washington Employment and Wage Claim Attorneys

The Oregon and Washington employment and wage claim attorneys (lawyers) at Schuck Law, LLC focus their law practice on  helping employees recover wages, damages, penalties through filing of lawsuits. Our Oregon and Washington attorneys  regularly prosecute employment and wage claim lawsuits for employees who were discriminated against, were not properly paid all wages, or were not timely paid their final wages. In addition to the claims for damages outlined above,  an employee may also sue to recover their costs, disbursements, and attorney fees incurred in prosecution of the employment  or wage claim lawsuit. This allows the Oregon emloyment and wage claim attorneys at Schuck Law, LLC to take most Oregon and Washington employment and wage claim lawsuits on a contingency fee basis. This means, with minor exceptions that are within your control, that our Oregon and Washington employment and wage claim attorneys only get paid their attorney  fees if they recover damages, penaltiesm, or wages for you.

Our Oregon employment attorneys (lawyers) prosecute wage employment claims throughout Oregon, including but not limited to, Portland, Astoria, Beaverton, Portland, Bend, Clackamas, Coos Bay, Grants Pass, Hillsboro, Portland, Hood River, Klamath Falls, Lake Oswego, Oregon City, Portland, Madras, McMinnville, Medford, Milwaukie, Portland, Newberg, Oregon City, Portland, Sandy, St. Helens, Portland, Tillamook, and West Linn.

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