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!