USERRA Job Protections and Leave Rights for Massachusetts Military Members

What is the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) and how does it protect Massachusetts military members who need to take military leave? 

What is USERRA and what job protections does the law provide for employees that have to take military leave?

The Uniformed Services Employment and Reemployment Rights Act (“USERRA”) is a federal law that provides considerable protections to Massachusetts employees who need to miss work for military leave. Those protections include the right to be returned to your job after the military leave, and the right to be free from discrimination based upon taking military leave.

Does my Massachusetts employer have to give me my job back at the end of my military leave?

More or less, yes, they do. USERRA contains specific requirements regarding notifying your employer about your need for leave, but, generally speaking, yes, you should not lose your job because you went on military leave and you should be returned to your job at the end of your leave.

Can my employer consider my military leave in Determining promotions?

No. USERRA contains something known as the “escalator principle” which essentially means that returning servicemembers must be re-employed in a position that reflects with reasonable certainty what you would have achieved had you never taken military leave. For example, if you were up for a promotion due to your length of service, but did not hit that benchmark because of your leave, USERRA would require you to be returned to the promoted position due to the escalator principle.

Can my employer terminate my employment After I Return to Work from military leave?

As explained above, in most circumstances, your employer has to give you your job back at the end of your military leave. But, what protections do you have after returning to work from military leave? Thankfully, USERRA provides protections against termination for returning servicemembers. Essentially, under USERRA, an employer must have “just cause” to terminate a returning servicemember subject to certain limitations. The “just cause” protection lasts for one year if the leave was longer than 180 days. The “just cause” protection lasts for 180 days for leaves more than 30 days but less than 181 days. This protection is important because it alters the at-will nature of the employee’s employment. Terminations that occur during these time periods can only be defended if the employer can prove that (a) it was reasonable to discharge the employee for the conduct in question, and (b) the employee received notice, express or implied, that the conduct would constitute grounds for termination.

In short, USERRA, as it should, provides considerable protections to Massachusetts employees.

Can my Massachusetts employer discriminate against me for taking military leave, or because I am a member of the military?

No. They can’t. Both state and federal law make it clear that an employer cannot discriminate against employees for taking military leave. Put differently, these laws prohibit employers from considering military leave when deciding not to promote an employee, not to give them a raise, not to give them a bonus, and they also prohibit those employers from disciplining, terminating, or demoting employees for taking military leave.

Do You Have Experience Handling USERRA Employment Cases for Massachusetts Military Members? 

Yes. We have handled three cases arising under USERRA involving Massachusetts military members.

In the first case, we represented a reservist who had deployed to the Middle East on a number of occassions. Upon return from leave, his employer explained to him that he needed to make a choice between his career and the military if he wanted to be promoted. The case eventually settled, but the employer would have been found to have violated USERRA if a jury believed that it did not promote the employee due to his military service.

In the second case, we represented a servicemember who went on active duty for a period of time while employed as a laborer. Toward the end of his leave, the employee contacted his employer to coordinate a return to work, only to be told that his position was no longer available, but that the employee could return to a less prestigious position with less pay and benefits. This case too eventually settled, but this employer would have been found to have violated USERRA if a jury believed that it failed to return the employee to his position after the end of his military leave.

In the third case, we represented a military member who sought leave under the Family and Medical Leave Act. In order to qualify for that leave, the employee had to have been employed for at least one year and to have worked 1250 hours in the year preceding his request for leave. The employee had been on military leave for a large part of that time period. The employer denied his request for leave, determining that the employee’s military leave did not count toward the one-year or 1250-hour FMLA thresholds. This determination violated federal law as that law provides that employees returning from USERRA-covered leave shall have that leave counted for FMLA eligibility purposes. This case also settled, but would have resulted in a victory at trial had the jury agreed that the employer should have granted the FMLA leave, despite the employee’s military leave.

What Should I Do if I Think My Massachusetts Employer is Violating USERRA and/or Discriminating Against Me Due to My Military Status?

Contact employment lawyer Benjamin Steffans to discuss. We offer free consultations to employees who have USERRA-related employment questions and are happy to talk with you so you can understand your rights.