In recent years we have witnessed our nation’s largest mobilization of military personnel since World War II. Over the next few months, we are expected to welcome home up to 4,000 New Jersey-based members of the National Guard and Reserves. At a time when the work force continues to shrink and unemployment rates remain at record highs, many of these returning service members will be seeking re-employment to their prior job positions. This unprecedented combination of circumstances will place some employers in the uneasy position of trying to reconcile the service members’ rights to re-employment with the legitimate business need for staff reductions.
Re-employment Under USERRA
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. §4301, et seq., provides comprehensive employment and re-employment rights to members of the military. USERRA applies to practically every employer, including private employers, without regard to size. See Cole v. Swint, 961 F.2d 58, 60 (5th Cir. 1992). In addition to the USERRA rights and obligations addressed below, employers should be aware that New Jersey maintains state laws protecting: employees from discrimination and retaliation because of military service; military service members called to state action by the governor; and public employees who require leave from employment for military duty.
