Veterans and the War at Home Part II: What is USERRA?

In this four part series, we examine the War at Home faced by veterans who return from active duty, and resources for veterans and their families. If you are a veteran or family member in need of legal assistance, we welcome you to contact the attorneys for veterans at Bosley & Bratch. We proudly serve veterans from all branches of the military in all 50 states.

Wherever you are and whatever your needs may be, our firm is here to help.

The Uniformed Services Employment and Reemployment Rights Act (USERRA)

A. Introduction

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is found in 38 U.S.C. 4301-4333 and provides employment rights to service members and prohibits workplace discrimination against members of the National Guard and Reserve.

B. Protections

The protections afforded servicemembers under USERRA include various benefits and entitlements including reemployment rights and benefits and have various time requirements and limits depending on the right or benefit.

C. Employer Support of the Guard and Reserve (ESGR)

Employer Support of the Guard and Reserve (ESGR) is a Department of Defense agency established to create and to maintain employer support for members of the National Guard and Reserve. Through its Ombudsman Program ESGR provides information and assistance to servicemembers to help resolve employment related disputes. ESGR is not an enforcement agency and does not provide legal counsel or advice. Contact information: (800) 336-4590, www.esgr.mil.

D. Department of Labor (DOL)

To the extent that an Ombudsmen is not able to resolve the employment dispute the servicemember may contact the U.S. Department of Labor through The Veterans Employment and Training Service (VETS). If VETS informal efforts to resolve the matter are not successful VETS will refer the case to the Office of Special Counsel (OSC) if the employer is a federal agency or the Attorney General (AG) if the employer is a state or local government or private employer. The Department of Labor may be reached at (866) 4-USA-DOL or www.dol.gov. The local Veterans Employment and Training Service office of the Department of Labor in Indianapolis may be reached at (317) 232-6804.

E. Private Counsel

A servicemember also has the right to private counsel of their own choosing, however, it is at their own expense. Additionally, if a servicemember retains private counsel, even for the limited purpose of making a phone call or writing a letter to the employer, his right to the use of the ESGR and Department of Labor may be compromised. The current position of the Department of Labor is that a servicemember is disqualified from using the DOL if they at any previous point use the assistance of private counsel. 38 U.S.C. 4324(b) (federal employees) and 38 U.S.C. 4323(a)(2) (non-federal employees) permit a servicemember to file suit through private counsel. If the servicemember prevails the employer can be ordered to pay attorney’s fees and litigation expenses incurred by the servicemember pursuant to 38 U.S.C. 4324(c)(4) and 38 U.S.C. 4323(c)(2)(B). If the violation is willful an employer may be subject to a double back pay award. 38 U.S.C. 4323(c)(A)(iii) (this does not apply to federal employees).

WARNING: Do not take any affirmative action in representation of a servicemember without considering these ramifications.

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Veterans and the War at Home Part II: What is USERRA?
Veterans and the War at Home Part II: What is USERRA?

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