The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) aims to prohibit discrimination against employees who serve or have served in the United States military. One of the problems that the law tried to remedy is a reserve employee’s uncertainty about his or her schedule. Because someone with reserve obligations to the military may be called up with little notice, some employers denied them jobs or promotions. USERRA requires an employer to reinstate an employee after the tour of duty is over, which many employers find difficult to accommodate. The law applies to virtually all employers, without the typical threshold number of employees.
Still, the number of claims in this region is not huge. There are only three cases reported on Westlaw, which does not capture every case but is indicative of the prevalence of the claim. One reason could be the difficulty of proving discrimination in hiring. Proving discrimination at all is seldom easy, but hiring is particularly difficult. In a failure to hire case, the claimant lacks the usual access to coworkers and personal knowledge at the workplace that exists when an employee claims discrimination in a termination. In a recession, it’s even harder, since there are usually multiple applicants for open jobs, and the failure to choose the veteran or the Army Reserve officer can be justified by some ground or other.
Congress is considering a new bill to amend USERRA to provide rights for veterans who have been injured or disabled during their military service. The law would extend health benefit and leave of absence rights to employees receiving treatment for their service-connected disabilities. The law, if passed, would provide that employees may use any accrued sick and vacation leave, do not lose any seniority rights, and have the right to return to their jobs. The House passed the bill, the Wounded Veterans Job Security Act, in June. It is before the Senate now.