Serving the military is one of the most honorable vocations a man or women can partake in. As a result, the law protects these men and women and mandates particular treatment employers must abide by to ensure reasonable accommodations and safeguards. However, employers continue to fire employees unlawfully as a result of military service.
If you were fired or believe that your employer acted negatively towards you as a result of your service, your employer may have acted illegally. It is vital to get informed and know your rights as an Employee to ensure your legal rights are protected. Here’s a section of my book “The Employee Rights Handbook” that deals with just that.
Fired for Serving in the Military
Congress passed the Uniformed Services Employment and Reemployment Rights Act (USERRA) in 1994 to protect the rights of veterans and military personnel. The law, together with revisions in 1996 and 1998 and the Veterans Benefits Improvement Act of 2004, expanded protections previously offered by the Veteran’s Reemployment Rights Act and the Military Selective Service Act. The USERRA provides reemployment protection against job denials or demotions for returning and/or injured soldiers, prohibits on-the-job discrimination and retaliation against any employee or applicant because of the individual’s past, present, or future application for uniformed services or performance of such service, and provides health insurance protection for service members and their families.
The Civil Rights Division of the U.S. Department of Justice is the agency responsible for enforcing the law and suing employers who fail to promptly reemploy returning service men and women. Complaints alleging violations of the USERRA can be filed with the Veterans-Employment Service of the United States Department of Labor. Veterans have different methods of enforcing USERRA rights depending on whether the employer is a federal agency, state agency, or private company.
The law covers all people who perform service on a voluntary or involuntary basis. This includes people serving in the Armed Services (including the Coast Guard), the National Guard (both active and inactive-duty training), commissioned corps of the Public Health Service, and the reserve components of each of these services.
The USERRA applies virtually to all U.S. employers regardless of size and covers all jobs. The only civilian jobs not protected are seasonal or temporary jobs with no reasonable expectation that employment would continue. To be covered, you must hold a civilian job; give reasonable notice (preferably by certified mail or in person to prove delivery) of leaving the job for participation in the uniformed services; leave the employer for no more than five years; obtain an honorable discharge (as opposed to a dishonorable or bad conduct discharge); and report back to the civilian job or submitted an application for reemployment in a timely manner.
The law requires immediate reinstatement if you were gone 30 days or less and within a few days if you were away more than 30 days unless business circumstances have changed so much that it is an impossible or unreasonable burden on the employer. You must be offered a job with the same pay, rank, and seniority upon your return. The employer is prohibited from forcing you to use vacation time for military training. Employers are obligated to assist employees who return from military service and cannot deny promotions, seniority, or other benefits because of military obligations. For example, if you were promoted or promised a raise right before a call-up, you must receive a job in line with the promised promotion and raise upon return, together with reinstatement of all benefits and those benefits (e.g., additional pay) that would have been earned if you continued to work.
If requested, health insurance and continuation coverage for a period up to 24 months must be offered to employees on military leave and their families at a cost of no more than 102% of the full premium under the plan. Veterans and their families may choose to go back on the company health plan immediately when they are re-hired with no waiting period and no exclusion for pre-existing conditions.
The law guarantees all defined benefit or defined contribution pension plan benefits that accrued during military service. Employers must prove reasonable accommodation for any disabilities incurred in military service unless the employer can demonstrate undue hardship. Most importantly, the law guarantees job security of at least one year if you worked at the company more than 180 days before taking military service or six months if you worked at the company between 31 and 180 days before serving in the military. This means you cannot be fired for any reason other than misconduct or cause in retaliation for seeking re-employment.
STRATEGY: The thrust of the USERRA is to prohibit employment discrimination due to past, present or future military membership in all aspects of employment including hiring, retention, promotion, reemployment, discharge and benefits. If you are forced to wait a long period of time (e.g., nine months) before getting your old job back, are fired shortly after returning to work through no fault of your own, are not allowed to use any previously accrued paid vacation or annual leave, are offered an alternative position with substantially less pay or a longer commute, or are denied a promised promotion, contact an official or attorney at the U.S. Department of Labor or private lawyer to enforce your rights. Recoverable damages include getting the job back and receiving lost back pay and benefits such as pension adjustments, vacation pay, forfeited promotional opportunities and a corrected personnel file, plus attorneys’ fees, liquidated damages and the costs of the lawsuit, including reasonable expert witness fees. In one recent case for example, an employer reportedly settled a case with an Army National Guard member who was denied a promotion upon returning for $20,000. Thus, get advice where applicable.
For a full depth analysis on this topic and many more, visit http://legalstrategiespublishing.com/ to purchase “The Employee Rights Handbook” today!
I was discharged from my place of employment this afternoon. Back in July, I informed my supervisor of my need to be away from work for 2 weeks while I performed my Annual Training in August/September. By the end of the week in which I informed my employer of my need for the time off, I was removed from the job in which I had spent almost a year doing, to be moved to a different area of the warehouse. The individual who replaced me was on light and limited duty, so it took 2 other individuals and that member of our crew to do the job I was doing. Upon my return in September, my supervisor continually harassed me, tried to discipline me, and was constantly questioning my productivity, though I was recording one of the top production days every single day I was there. The harassment and discipline was handed down for things that fellow co-workers were also doing or not doing, but the supervisor continually singled me out. Last week I approached my supervisor and informed her of my need to have 2 weeks off again for Annual Training in March. Today I was informed I was being let go because my production “between 5 am and 6 am were not sufficient”. My issue with this reasoning is we’ve only ever been judged on our production for the entire day. They chose to take one specific hour out of a 9-10 hour work day and use it against me. I have called in sick twice in almost 4 years. I am never late. I never leave early. I always do the right thing, the safe thing, and perform at or near the top every single day on the job. All I want is to be treated fairly, and my job back.
I was fired from my part time job the day I went to the military MEPS, I woke up at 4am, came back to town at 4:45 and worked until 9pm and was told to choose my job or the Army because they couldent have me leaving for no good reason.
This was 2 weeks ago. Anything I can do about this? I just got the job, it was only a one time part time and it pays low, just enough to cover bills before I enlist. Any advice?
I didn’t mention I also told the restaurant owner and he told me to go home.
These laws don’t protect you unless the employers say and you must have it recorded, “you’re fired because you are in the military”. If those words don’t come out of their mouth then this law does not protect you. Each state has its own set of rules, such as free to work which means either party can fire you at any time for any reason. This law does not protect you from that if they did we wouldn’t have a problem in the US or this conversation. The biggest issue with employers once you’ve told them about your situation; employers will tend to make excuses such as giving you a performance error or trying to force you to quit, finding something about you to have it documented. That way they wouldn’t be in trouble in court for firing you and can rely on false evidence in court. This is very extremely difficult to win in court, there is no record of anyone winning in court for something like this. Good luck.
I just got fired after 6 years. We had some differences back in December in which it was told my only “punishment” might be that I’d have to come to the office to work rather than from home. January 17, I was called in and fired. No warning no reason. It just so happens that I’m leaving for BOLC in April until August. The only thing that has changed is my military service in 6 years. I’ve given them advance notice fir a long time that this was coming. I just get the boot.
I just did my AT for two weeks and as soon as I got to work they fired me because they “needed people to work weekends” I worked pretty much every single weekend besides my drill weekend and AT
Wow I see some real bs comments on here. First let’s be clear the law we are all talking about is userra and yes it does 100% protect your job by law. Now whether your employer abides by that law or not is up to them but it’s hefty if they dont. Under userra law violations your employer will be held accountable to pay double your wage for time off work and that’s not including any liquidated damages you may have due to it. (Car, house, credit issues) etc. If your commenting negatively and your a service member or vet I get it. I’m a vet myself (soon returning service member) once my suit is settled along with living situation being suitable again. But we have to stand up for each other because no one else will. These laws are everything that we have fought for and also entitled too. Not standing for our rights makes our terms of service and the time we spent away for nothing. We should stand and all fight for what’s right. And if your asking is it worth it, well I asked myself that too but when I had my car repossessed because my job didn’t put me back to work I had no choice. Its been 4 months in my journey now since my return and I’m at 50k in my suit. Now don’t get too excited everyone’s case is different and always make sure to keep as much evidence as possible including any witnesses. This includes family and friends not just coworkers. My situation well I’m in process of nursing school and a student. I signed up in April and gave my company notice a day after. (Keep in mind I wasn’t leaving till May a whole month later) Initially my boss wasn’t happy and said they couldn’t hold my position. I immediately went to HR and found an email Monday morning from my boss apologizing. So I left for duty in good standing with my employer (important). Shortly before returning and poor communication due to duty restrictions my employer called asking about my return. I called back and stated I did not know of my return due to being injured durring duty. Little did I know I would return 3 days later (love the army) and got a voice mail saying (from my new director) that they weren’t holding my position. That weekend I returned there was a hurricane. Ok so hurricane is over and I go into hr Monday or Tuesday and was told by the HR rep I delt with prior to leaving that she would get ahold of my director. Well after two weeks of chasing them after many ignored phone calls and messages , I was walked into my HR directors office and told that they didn’t hold my position but there were many nursing positions available, however I’m not a nurse yet. So upon walking me out she told me thank you for your service. (The moment she new she fucked up) thankfully I have a good military baring and was able to keep my composure. Mind you I got the famous girlfriend call on the bus ride home. So I called ESGR and they sent me another email of my rights to send them (this was already done by my recruiter) so I started looking into other channels, talking to attorneys etc. I ended up calling esgr back 3 months later and got an extremely rude ombudsman to take my case. After fighting with him he says they want to give you your job back and I said great but what about my car. Long story short he told me to grow up and we had some words. So again going through the channels. I called Dept of labor and spoke with vets. I considered filing a congressional but decided to go with an attorney since damages were already involved with a repossesed car and an eviction on the way that all could have been avoided if they would have just let me back to work when I had returned. Long story short still in suit but it’s a win with my lawyer and with documented evidence and as much as I have this case will be alot of money plus it ain’t me paying these attorneys fees. However my suit hasent been a walk in the park and wished honestly the right thing was done and this whole thing was avoided. Now remember I mentioned about the pissed off vets here ? I was a combat engineer and still never had a proper welcome home, I’ll let your imagination tell you what I wanted to do to this place of employment. In the end my case will see well over 50k and I’ll be able to still have my job back because I cannot be discriminated against for exercising my userra rights. My job will also be protected for a year and not able to be fired freely in a right to work state. If they don’t take me back or they fire me under a bs cause or if I’m even treated unfairly, well let’s just say I’m not going to have to rely on my g.i. bill for school. Stay sharp and keep your head up soldiers. Do the right thing even when its hard as remember those bct standards you were taught.
Sequoyah ozorowsky,
I work in the legal field, but this is way outside of my area of expertise. My boyfriend is dealing with a situation with his job right now that we are pretty sure is due to his military service. I do not think when they hired him they understood exactly what it meant. I honestly do not think they have ever had an employee that was in the National Guard. Before he left for AT everything was fine, and when he came back the attitude of everyone that worked in the shop with him changed to one of discontent I guess you would say. He was sent home this past Thursday and told they knew he had been under alot of stress lately and they wanted him to take the weekend and relax. Monday when he got back he was sent home with pay and told the issue has been bumped up to HR and they would get back to him. He has no idea what the reasoning is for even involving HR. He has been told is work/results were fantastic. He never heard back so he text his boss last night and finally got a response 2 hours later to be there at 9:30 today. He is sure he is getting fired, and still has no clue what he supposedly did wrong. He informed them when he started of his at dates and that he had ALC the entire month of October. He also informed them that his unit was part of a disaster response team which means in the event of a disaster he could be activates with little notice. It just happens that this all has occurred around the same time two storms were set to move into the Gulf at the same time, and now one is predicted to make landfall as a cat. 3. I am not sure if it can be proven that their actions are due to his military service, but he has it in a text message that their meeting on Thursday was strictly about his well being, as far as his job performance there is no issues.
I am a be member of National Guard. In the middle of April 2021 I started new job in property management as admin coordinator. I am a full time post-graduate student, and it was crucial for me to successfully balance my work and school. 3 days prior my Annual Training my employee decided to switch me to the Property Manager position because the person who currently performed these duties were failing her job. I accepted the offer verbally, stating that I will do my best, “but I need a transition plan to takeover all open tasks”. In 3 days after the switch to a new role I left for AT. When I came back I experienced a flow of emergency or long-lasting tasks that were not taken care of, and I was trying to take care of it the best I could. I raised this concern to the managing director, and mentioned that compensation for new role was never offered. Finally, when all my tasks were taken under control, employer decided to “let me go”, as my performance was “not there”. I have only been at the new role for a month.
I am sure absence during my military orders impacted my performance, however I was new at this role, and never got a proper transition.