The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits employment discrimination against an employee based on past military service, current militarily obligations, or the intent to serve. One form of discrimination arises when servicemember employees engaged in military services are denied the same rights and benefits offered to other non-servicemember employees. Davenport Evans Employment lawyer Brooke N. Schmidt explains new legal developments:

Recently, two class action lawsuits alleging USERRA violations were filed in federal courts in Georgia and Washington. Both cases deal with employers offering different types of paid leave, such as paid leave for jury duty, bereavement leave, and sick leave, but denying paid leave for short-term military leave. Both courts allowed the cases to continue, noting that offering paid leave to comparable non-servicemember employees and denying paid leave for short-term military leave are plausible USERRA violations. A question of whether paid short-term military leave is a right under USERRA is also before the courts. Although, not binding on South Dakota employers given the jurisdictions, a few United States Courts of Appeals already ruled paid leave is a right and benefit protected by USERRA in certain circumstances, thereby forcing employers in these jurisdictions to offer paid leave in comparable situations.

An individual who believes his or her USERRA rights have been violated can file a complaint with the United States Department of Labor and an investigation may ensue. Penalties for USERRA violations include compensation for lost wages or benefits, as well as liquidated damages for willful violations. South Dakota employers should be aware of the rise in litigation regarding USERRA rights and should revisit their employee handbooks, internal policies and practices to ensure servicemembers receive the same rights and benefits as non-servicemember employees.

The employment law attorneys at Davenport Evans are closely monitoring these issues and are ready to help you take steps to comply with these requirements. Contact us at [email protected], 605-336-2880, or find a specific lawyer here.


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Davenport, Evans, Hurwitz & Smith, LLP, located in Sioux Falls, South Dakota, is one of the State’s largest law firms. The firm’s attorneys provide business and litigation counsel to individuals and corporate clients in a variety of practice areas. For more information about Davenport Evans, visit