Who is Protected Under USERRA?

January 21, 2011, 2:29 PM

A recent case highlights the difficulty employers may face when trying to identify employees who are covered by the Uniformed Services Employment and Reemployment Rights Act ("USERRA").

USERRA is intended to encourage noncareer military service, minimize the disruption caused by noncareer service, and prevent discrimination against service members. If your company employs individuals serving as reservists, when do these employees trigger protections under the Act? For example, what about reservists on inactive status, are they afforded any rights?

By its terms, USERRA provides that: "A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation." 38 U.S.C. Section 4311(a).

Recently, a federal court of appeals explained that USERRA's protections applied to a member of the U.S. Army Reserves who was on inactive status (did not require leave for military training), but who had indicated to his supervisors that he intended to return to active duty in the near future. The court held that this notification satisfied the "applies to perform" requirement described above, recognizing that it was not "strictly speaking an application for service." Vega-Colon v. Wyeth Pharmaceuticals (1st Cir. 2010).

This case is a strong reminder that human resource professionals and supervisors must be extremely carefully when handling issues related to employees requiring military leave. --David J. Sullivan