Discrimination on the basis of military status involves denying equal employment opportunity to any person because of that person’s past, current or future membership, service or obligation in a uniformed service. An employer must reemploy a person who leaves employment for specified time periods for military deployment, service or training unless the employer can prove a statutory defense. Military status discrimination could take the form of refusing to hire, failing to reemploy, discharging, failing to promote, harassing, or discriminating against a person with respect to any other term, condition or privilege of employment.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides job protections to employees who temporarily leave private employment for military service. USERRA was enacted to ensure that individuals who serve the country are not disadvantaged by their sacrifice, and to encourage non-career service in the military. USERRA meets these goals by prohibiting employers from discriminating against members of the military because of their service, and guaranteeing that members of the military will be able to return to their jobs following a period of military service. USERRA also protects military service members who exercise their rights under USERRA from employer retaliation.
USERRA Attorney in the Tampa Bay Area
The Law Office of Patrick K. Elliott, PLLC is dedicated to advancing the rights of military service members. We understand the importance of serving the country and the challenges that an employee may face in the workplace due to that choice. If you have been denied a job, promotion, re-employment or any other benefit because of your service in the military, please contact us at the Law Office of Patrick K. Elliott, PLLC.
USERRA provides protection to individuals who perform service, in the Army, Navy, Marine Corps, Air Force, the Army National Guard, Air National Guard, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these organizations. Certain disaster response work is also covered. USERRA not only protects those who have served in activity duty or participated in active duty training, it also protects those who have served in inactive duty, participated in initial active duty training, performed funeral honors duty in the National Guard and the reserves, and those who are absent from work in order to perform a fitness for duty examination.
USERRA requires military service members to be reemployed with the same seniority and entitlement to benefits as they enjoyed prior to their military service. If reemployment in the same position is not possible, an employer must still make reasonable efforts the employ the military service member in a similar position. USERRA also requires employers to maintain an employee’s access to their health insurance for a certain amount of time during their military service.
Employers who willfully violate USERRA face payment of double the amount of the damages incurred due to their violation of the law.
The Family and Medical Leave Act can augment protections available to members of the military, by allowing service members to take up to 26 weeks of leave during a 12 month period.
Contact The Law Office of Patrick K. Elliott, PLLC For Legal Assistance
If you feel you are experiencing or have experienced workplace retaliation due to your military service, please contact Patrick K. Elliott,P LLC today. We are passionate about providing employees the best possible protections from retaliation. Contact or call confidentially at (813) today.
A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.
While we often hear media reports about workplace discrimination involving gender, race, national origin, age, and disability that is all too common. But most Americans would be surprised to learn that each year thousands of employees are subjected to blatant and harmful discrimination simply because they are veterans or are currently serving in the Armed forces – and this discrimination harms our national security by discouraging participation in the National Guard and Reserve.
Despite the well-publicized job skills that veterans and servicemembers offer – including leadership skills, education, training, values, and teamwork experience – many civilian employers believe that their employees’ military duties are inconvenient to their businesses and some believe their employees shouldn’t be allowed to take military leave and return to their civilian jobs without interruption. fortunately, for more than 70 years, federal laws have protected the rights of American workers to serve in the military without losing their civilian jobs and to enforce their rights when they are subjected to discrimination or retaliation.
Enacted in 1994 to strengthen longstanding protections, USERRA ensures that individuals who serve or have served in the uniformed services receive strong statutory protections. Because our military heavily relies on men and women who volunteer to serve in the National Guard and Reserve, Congress has guaranteed that these honorable Americans’ civilian jobs must be protected when they serve in the military and that they must be free of discrimination based on their service or status.
Specifically, USERRA protects the rights of past or present uniformed service members, as well as those who have applied for service, to be free from discrimination by all employers of all sizes (including private employers and federal, state, and local governments) based on military service or status. The law prohibits discrimination in hiring, promotion, wages and benefits, and termination, as well as harassment. Service members also have a right to take military leave without penalty and a right to be reemployed in their civilian jobs after serving. The law also requires employers to make pension contributions to employees for the period of time that they served in the military-so that their retirement security is not jeopardized by their military service. And servicemembers have certain rights to have their healthcare insurance benefits continued during their military service. Additionally, an employer cannot retaliate against anyone – a service member, veteran or anyone else – who exercises a right or assists in the enforcement of a person’s USERRA rights.
Despite the importance of this federal law, each year thousands of employees report violations of USERRA to the Department of Labor and the Department of Defense. According to a recent report to Congress, in fiscal year 2015 the U.S. Department of Labor received more than 1,100 complaints from veterans and servicemembers about USERRA violations. Among those complaints:
§ 39.6% claimed discrimination based on military obligations;
§ 18.7% involved issues regarding reinstatement after military service;
§ 11.5% included compensation or benefits issues, including pay rates, healthcare, pension, and vacation;
§ 11.0% reported retaliation for exercising or enforcing their rights under USERRA;
§ 7.4% alleged discrimination in initial hiring;
§ 6.6% cited failure to promote based on military service.
Members of the National Guard and Reserve stand to benefit the most from the reemployment rights that USERRA provides. Because of our military’s extensive commitments throughout the world and our use of reservists for critical duties at home, servicemembers have been called to active duty for years (sometimes for multiple tours), and have often left civilian jobs with income and benefits on which their families rely. Ensuring that their civilian jobs will be waiting for them provides returning veterans the peace of mind so that they and their families won’t have to worry about making ends meet when their military service concludes.
As long as a servicemember has five years or less of cumulative military service with his or her employer (and many types of military service are exempt from the five year limit), gives advance written or verbal notice to the employer of his or her military service, and seeks reemployment in a timely manner after an honorable or qualified discharge, the servicemember has the right to be restored to the same position (or in some cases a better position that the employee would have attained if he or she had not served in the military). When a servicemember is reemployed, he or she is entitled to reinstatement of all the same rights and benefits associated with that position, and cannot be required to wait for any benefit to be reinstated.
Many employers find USERRA’s protections to be unduly burdensome and have tried to circumvent the law, most notably through employment agreements that take away the rights of veterans and servicemembers. As recent lawsuits and a split among the federal appellate courts demonstrate, these contracts-and specifically the mandatory arbitration agreements they contain-have undermined the powerful rights that USERRA confers.
For example, in a case recently decided by the U.S. Ninth Circuit Court of Appeals, a Navy reservist who was mobilized to Afghanistan filed a lawsuit claiming that his civilian employer wrongfully terminated him in violation of USERRA on his last day of work before deployment. The employer argued that a contract the reservist signed included an arbitration clause that barred him from enforcing his USERRA rights in a federal or state court. The federal district court held that the arbitration agreement stripped him of his right to sue under USERRA, and the Ninth Circuit regrettably agreed, joining some, but not all, of the other Courts of Appeals that have addressed the issue.
In response to this and prior cases, bipartisan legislation was introduced in 2016 to clarify that USERRA prohibits employers from forcing servicemembers and veterans to waive their procedural rights, including their right to enforce their USERRA rights in court.
Until the U.S. Supreme Court resolves the split among the Circuits or Congress clarifies that USERRA bars forced arbitration of USERRA claims, servicemembers and veterans should be thoroughly aware of their employment rights, review workplace policies and employment contracts, and if necessary, consult an attorney experienced in successfully handling USERRA matters.
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