labor lawAdivision of labor law center

 “This Memorial Day, I want to take the opportunity to highlight the steadfast commitment of the Justice Department’s Civil Rights Division to protecting the rights of America’s service members, who have made invaluable sacrifices for this nation,” says Grace Chung Becker, Acting Assistant Attorney General for Civil Rights at the US Department of Justice or DOJ.

 

The Civil Rights Division of the DOJ protects the rights of service men and women by vigorously enforcing a number of laws designed to protect them and their families. Those include the Uniformed Services Employment and Reemployment Rights Act of 1994 or USERRA. The right to vote while serving in the armed services is protected by the Uniformed and Overseas Citizen Absentee Voting Act or UOCAVA.  Financial security is protected by the Servicemembers Civil Relief Act of 2003 or SCRA. In addition, the rights of veterans in public institutions are protected by the Civil Rights of Institutionalized Persons Act or CRIPA.

 

Memorial Day is a great time for every employer to review their company’s compliance with the Uniformed Services Employment and Reemployment Rights Act or USERRA.

 

It’s also a good time to review NDAA. Under new legislation passed in 2008, employees are entitled to up to 12 weeks of unpaid FMLA leave when a family member is deployed on active duty. In addition, a wounded soldier’s next of kin is entitled to up to 26 weeks of unpaid, job protected leave to care for the service member. This is true, even if the next of kin is not an immediate family member.

 

USERRA was enacted to protect service members from being penalized in their civilian careers due to serving in the uniformed services. USERRA not only prohibits discrimination against persons based upon their military service, but also:

 

Requires employers to reemploy service members upon their return from military leave

Gives returning service members protections from discharge when their military leave exceeds 30 days in length

Entitles service members to enjoy the same rights and benefits of employment that the employer generally provides to employees who take comparable forms of non-military leave.

 

The USERRA covers employees on active military assignments, as well as members of the national guard and reserve who are called for active duty or serving their annual training. After the tragic events of 9/11, some emergency responders and emergency medical providers were added to those protected under the USERRA.

 

The USERRA establishes timeframes for former members of the active military to report back to their civilian jobs. The time frames vary according to the length of service. In most cases they are limited to 5 years, but in some cases – as when a service member is wounded – there are extensions.

 

By law, employers must return employees to their former jobs when they return from military service.

 

USERRA requires that in most cases, the service man or woman must be restored to his or her civilian position after military service. The “escalator clause” ensures that employees returning from active military duty receive promotions and raises that they would have received, had they remained at work.

 

Service members may file a USERRA claim with the Department of Labor (DOL) through DOL’s Veterans Employment Training Service (VETS). Under the USERRA, service members may also file a complaint in federal district court, without filing a complaint with DOL, to seek redress for a USERRA violation.

 

The U.S. Attorney General and DOJ may represent service members in their USERRA claims against private employers and state and local governments. The claims are handled by the Civil Rights Division’s Employment Litigation Section.

 

The Civil Rights Division’s Special Litigation Section protects the constitutional and federal statutory rights of persons confined in certain institutions owned or operated by, or on behalf of, state or local governments. These institutions include facilities for individuals who are mentally ill and developmentally disabled, nursing homes, juvenile correctional facilities, and adult jails and prisons.

 

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