Q. Are active duty military and veterans considered a protected class?
A. Active duty military and veterans have protections under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). The law provides that employees who perform military service “shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment” on the basis of that service. USERRA applies to all employers, regardless of size.
Under USERRA, an employer generally has a duty to reemploy an employee who takes a leave of absence for military service. An employee who is called to military service qualifies for reemployment upon discharge from service if the employee:
- Properly notified the employer of the need for a service-related absence
- Takes a cumulative absence of no more than five years
- Properly reapplies or reports to work on a timely basis
- Has not been separated from service with a disqualifying discharge or under other than honorable conditions.
An employee may be disqualified if the employer’s circumstances have changed so that reinstatement is not possible.