Veterans Day
Veterans enjoy some unique employment protections, an apt topic for this Veterans Day. The federal statute is called the Uniformed Services Employment and Reemployment Rights Act - or USERRA - and it has a counterpart in many states under state law as well. This includes Mississippi.
First of all, the statute prohibits discrimination against veterans. 38 U.S.C. Sec. 4311(a). This is fairly straightforward.
The unique feature of the law, however, is that it gives any person the right to leave work for up to five years to go into the military, and then demand his job back. This includes short breaks from work (such as for a brief reserve call-up or training) as well as a lengthy and continuous break, such as for a multi-year deployment. 38 U.S.C. Sec. 4312.
All that is required is for the person leaving for the military to give written or oral notice
that he is going into the military when he leaves the job, and then to apply for reemployment promptly on his return. 38 USC Sec 4312(a); see also 38 USC Sec 4312(e) for what I mean by promptly.
He does not have to inform the employer that he intends to come back to this job before leaving.
The employer has a possible defense, but it is not simple. To avoid the requirement to rehire the employee, the employer usually must prove that the employer’s business has changed such that reemployment is impossible or unreasonable.
38 USC Sec 4312(d).
And the employer cannot retaliate or harass the veteran for exercising his reemployment rights. 38 USC Sec 4311(b).
The veteran is not only entitled to get the same or similar job back, he is entitled to be treated as if he had been continuously employed in the meantime. In other words, he should still be accumulating seniority, leave, benefits, and pay raises during the time he is in the military - even though he is not at work or even on the employer rolls. The statute says he must be reemployed in the position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service
or else in a position of the similar seniority and status. 38 USEC Secs 4313, 4316, 4317, 4318,
This includes the right to retirement benefits accrual and contributions - although the employee will usually have to buy back
the employee contributions he missed in the meantime.
State law provides additional protections. In particular, it is a crime - a misdemeanor with fine or prison term up to 6 months - for any employer to discriminate against a veteran or member of the reserves. Miss Code 33-1-15. And because of the McArn doctrine (discussed elsewhere on this site), a veteran who experiences such discrimination cannot be fired for reporting it.
In addition, Mississippi has a reemployment statute also. A person in the employ of any employer
in the state shall be entitled to be restored to his previous or a similar position, in the same status, pay and seniority, and such period of absence for military duty or training shall be construed as an absence with leave but may be without pay.
Miss Code 33-1-19. Crucially, the Mississippi statute does not mention any notice whatsoever to the employer about the reason for leaving, nor does it have a 5 year limitation on the military leave taken. This means that, even after decades of military time, employees in Mississippi may still have a means of securing reemployment.
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