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Balancing the responsibilities of both civilian employment and military duty can be challenging for some employees. However, federal laws provide specific rights and protections to ensure that military personnel are not disadvantaged or discriminated against in the workplace due to their service obligations.
Military personnel often face unique challenges in employment, and discrimination based on military service or obligations can take many forms. Below are a few examples:
Refusing to Hire or Promote Military Personnel
Some employers may hesitate to hire individuals who serve in the Armed Forces because they worry about the employee’s ability to balance military duties with job responsibilities. In some cases, an employer may decline to hire or promote an otherwise qualified individual solely because they may be required to take time off for military training or deployment.
Retaliation for Taking Military Leave
Employees who need to take time off for military service are protected under federal law, but some employers may retaliate against them for exercising this right. Retaliation can include negative performance reviews, demotions, or even termination due to an employee’s absence for military duty.
Failure to Reinstate Employees After Military Leave
Military members have the right to be reinstated to their civilian job after returning from service. This includes returning to the same position or a comparable one in terms of pay, benefits, and seniority. Unfortunately, some employers may refuse to reinstate employees after they complete their military service, claiming that the position was filled or that the employee’s absence caused too much disruption.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that provides crucial protections for service members who need to take time off from their civilian jobs for military service. USERRA applies to all members of the Armed Forces, including the National Guard and Reserves, and it applies to all civilian employers, regardless of size.
Here are some key protections under USERRA:
Right to Take Military Leave
USERRA grants employees the right to take a leave of absence from their civilian job for military service without fear of losing their job or suffering retaliation. This includes any form of active duty, training, or other obligations required by the Armed Forces. Employers cannot deny military leave or take any adverse action against employees because of their service obligations.
Reemployment Rights
When a service member returns from military duty, USERRA requires employers to reinstate the employee, as long as the employee meets certain conditions. These conditions include notifying the employer of their intent to return to work and not exceeding the five-year cumulative service limit (with some exceptions). Reinstatement rights under USERRA include the following:
Protection from Discrimination and Retaliation
USERRA makes it illegal for employers to discriminate against individuals based on their military status. This includes not only current service members but also those who have applied for military service or who have obligations to serve in the future. Employers are prohibited from denying employment, promotions, or any other benefits because of an employee’s military service or status. Additionally, USERRA protects employees from retaliation. Employers cannot take adverse actions against an employee for asserting their rights.
Health and Pension Benefits
USERRA ensures that service members can continue to receive health insurance benefits while they are on military leave. Employees who are absent for less than 31 days due to military service are entitled to continued health coverage as if they had remained employed. For longer absences, employees can continue their health insurance coverage for up to 24 months, similar to COBRA. USERRA also protects pension benefits. Employers must make contributions to the employee’s pension plan as if the employee had never left.
Some employers may still violate the law—whether through ignorance, misunderstanding, or willful noncompliance. If you believe your rights under USERRA have been violated, here are several ways an attorney can assist:
Evaluating Your Case
An attorney can assess whether your rights to military leave, reemployment, or protection from discrimination have been violated and help you understand the legal options available to you.
Filing a USERRA Complaint
If your employer has violated your USERRA rights, an attorney can help you file a complaint with the U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS) or the appropriate state agency. An attorney can guide you through the process, ensuring that your complaint is complete and supported by the necessary documentation.
Negotiating with Your Employer
In some cases, it may be possible to resolve the issue without going to court. An experienced employment attorney can negotiate with your employer on your behalf, seeking reinstatement, back pay, or other remedies to ensure that your USERRA rights are upheld.
Filing a Lawsuit
If negotiations or administrative complaints do not lead to a satisfactory resolution, your attorney can file a lawsuit in federal court to enforce your USERRA rights. In successful, you may be entitled to reinstatement, compensation for lost wages and benefits, and attorney’s fees.
Protection Against Retaliation
If your employer retaliates against you for asserting your rights, an Orange County retaliation attorney can help you file a separate claim for retaliation. This could include seeking damages for lost wages, emotional distress, and other harm caused by the employer’s actions.
Service members sacrifice a great deal to protect our nation, and they should not face discrimination or retaliation in the workplace because of their military duties. If you believe your rights have been violated, contact Aegis Law Firm for a free consultation. Our Orange County Military Leave Lawyer can help you protect your career, seek justice, and ensure that your service to the country is honored.