Veterans Employment Rights
Until 2009, only federal laws and federally supported programs protected military members from employment discrimination. The principal federal anti-discrimination statute relating to veterans employment is the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).
Among other things, USERRA protects veterans, reservists, and members of the National Guard from employment discrimination and requires employers to reemploy them in their civilian jobs after military service or affiliation. Members of the military are also protected under Oregon law. Below is some basic information about Oregon's new law and how it works in conjunction with USERRA.
What are the reemployment rights for servicemembers?
Assuming the servicemember satisfied all eligibility criteria for reemployment protection, there are four basic entitlements:
Prompt reinstatement to either the same position, or one of like seniority, status and pay.
Accrued seniority as if continuously employed. This includes status, rate of pay, pension vesting and credit for the period for pension benefit computations.
Training or retraining and other accommodations when necessary. If a returning servicemember has been gone such a length of time that they no longer have the skills to be qualified for their previous civilian position, the employer must make reasonable efforts to help them become qualified again.
Special protection against discharge unless for good cause.
What is employment discrimination against servicemembers?
If an employer denies a person any of the following because the person applies, performs, or has performed in a uniformed service, it may be employment discrimination:
If an employer discharges, expels, disciplines, or threatens a person for exercising or attempting to exercise rights to participate in a uniformed service, it may be employment discrimination.
If a public employer denies a public employee the status or rights provided to veterans, it may be employment discrimination.
What are the requirements that a returning servicemember must meet to be elibigle for reemployment protection pursuant to USERRA?
Under USERRA, a returning servicemember must meet five eligibility requirements for reemployment protection.
Hold or have applied for a civilian job other than a temporary position.
Have given written or verbal notice to the civilian employer prior to leaving the job for military training or service except when precluded by military necessity. Click here for examples of letters informing an employer of an impending uniformed service obligation.
Must not have exceeded the 5-year cumulative limit on periods of service.
Must have been released from service under conditions other than dishonorable.
Must report back to the civilian job in a timely manner or submit a timely application for reemployment.
When is a servicemember required to give notice to their civilian employer of impending uniformed service? How should this notice be given pursuant to USERRA?
The civilian employers must receive advance, written notice from either the person performing uniformed service or an official representative of the uniformed service. Although there is no fixed timeline when notice must be provided, servicemembers should provide their employers with as much advanced notice as possible.
Click here for examples of letters informing an employer of an impending uniformed service obligation.
Am I protected if I am a member of the Guard who has had to take leave for work because of state service, like for training, firefighting or other disaster relief?
Yes. Oregon law provides reemployment rights for servicemembers who are public employees and for members of the National Guard who are performing duty in their state capacities (e.g., doing fire suppression, as opposed to deploying overseas).
Do reemployment rights extend to temporary positions?
Generally speaking, most employees who leave employment for the purpose of uniformed service are protected from employment discrimination under USERRA and Oregon law. However, most employees who were in temporary positions prior to being called to uniformed service are not covered by USERRA or Oregon's anti-discrimination protections. Temporary positions are those in which an employee has no reasonable expectation of continuing employment for a significant period. Servicemembers who were employed in part-time, seasonal, or temporary employment that occurred regularly or had been continuous for an indefinite period are protected by USERRA and Oregon anti-discrimination laws.
Does a servicemember have the right to continue receiving health benefits from their civilian employer during uniformed service?
Yes. An employee may elect to continue health insurance coverage, for themselves and their dependents during periods of uniformed service. If an employee does not continue receiving civilian benefits while engaged in uniformed service, the previous health insurance should be immediately reinstated upon returning to the civilian job. The health plan cannot impose a waiting period and cannot exclude the returning employee based on pre-existing conditions.
How is Oregon law different from USERRA?
Oregon's new law works much like USERRA, but has several advantages which include:
Fewer conditions that a servicemember must satisfy before being eligible for employment and reemployment rights.
Extending protections to include veterans who are no longer in military service.
Giving state watchdog agencies, such as the Oregon Department of Justice and the Bureau of Labor and Industry (BOLI) an enforcement role to defend Oregon veterans.
More options for veterans to pursue remedies: At the federal level, state level or both.
Oregon's new law extends to servicemembers the same protections against discrimination in the civilian workplace that Oregon statutes have traditionally provided to other protected class members. It also gives the Oregon court system jurisdiction to take these cases. Working together, state and federal authorities will be even more effective in stopping workplace discrimination.
Who should servicemembers contact with potential employment discrimination claims?
There are several options for servicemembers seeking help for potential employment discrimination claims.
File a complaint with a federal agency:
File a complaint with an Oregon state agency:
Contact an advocacy organization for assistance:
The Employer Support for the Guard and Reserve (ESGR) is a Department of Defense organization staffed by local volunteers. They take USERRA complaints and attempt to work out negotiated solutions between employers and servicepersons. Contact the ESGR by calling 1-800-336-4590.
The Oregon State Bar's Military Assistance Panel matches deployed servicemembers and their dependents with attorneys willing to provide up to 2 hours of legal advice at no charge. Contact the Military Assistance Panel toll-free in Oregon at 1-800-452-8260.