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Discrimination Based on Military Status

§ 8.17
Key Point 8-17. Federal law prohibits all employers, including churches, from discriminating against any person on account of military service. This includes discriminating against an applicant for employment, or an employee, who has an obligation to perform services on active duty or in the National Guard.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) applies to persons who perform work in the "uniformed services," which include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services. Federal training or service in the Army National Guard and Air National Guard also gives rise to rights under USERRA. In addition, under the Public Health Security and Bioterrorism Response Act, certain disaster response work is considered "service in the uniformed services."

Uniformed service includes active duty, active duty for training, inactive duty training (such as drills), initial active duty training, and funeral honors duty performed by National Guard and reserve members, as well as the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty.

USERRA covers nearly all employees, including part-time and probationary employees. USERRA applies to virtually all U.S. employers, regardless of size. Religious employers are not exempt.

In general, an employer must reemploy service members returning from a period of service in the uniformed services if those service members meet five criteria: (1) the person must have held a civilian job; (2) the person must have given notice to the employer that he or she was leaving the job for service in the uniformed services, unless giving notice was precluded by military necessity or otherwise impossible or unreasonable; (3) the cumulative period of service must not have exceeded five years; (4) the person must not have been released from service under dishonorable conditions; and (5) the person must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment.

USERRA establishes a five-year "cumulative total" on military service with a single employer, with certain exceptions allowed for situations such as callups during emergencies, reserve drills, and annually scheduled active duty for training.

Key Point. USERRA also allows an employee to complete an initial period of active duty that exceeds five years (e.g., enlistees in the Navy's nuclear power program are required to serve six years).
Key Point. Laws in some states provide additional protections to military personnel.
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