Discrimination in the workplace based on Military Service

It’s hard to believe, but some employers actually will discriminate or retaliate against their employees or applicants merely because they were or may be required to spend time away from work because of their service to our country through the reserves or other military service. Congress, fortunately has enacted laws which makes such discrimination or retaliation illegal. This law is known as The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”).

Specifically the law states:

“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.”  38 U.S.C.S. § 4311

The law not only prevents employers from not hiring or re-hiring employees based on their obligation to a uniformed service, but also makes it illegal to fail to promote, retain, or provide any benefit they would normally be entitled to. If an employer were to create a hostile work environment for the employee based on their service; this would be denial of a benefit the employee should be entitled to and is illegal.

USERRA also prohibits employers from discriminating or taking any adverse employment action against any person because such person took part in required service duties,  has testified or otherwise made a statement in or in connection with any proceeding or investigation into complaints under USERRA, or has otherwise exercised a right provided for in this chapter.

A person would be entitled to the lost wages and benefits they would have received had it not been for the illegal action taken. USERRA also provides for liquidated (or double) damages in an amount equal to lost wages and benefits if the court determines the employer’s failure to comply with the provisions of USERRA was willful.

USERRA applies to virtually all employers, including the Federal Government. Except with respect to persons who have a disability incurred in or aggravated by military service, the position into which a person is reinstated is based on the length of a person’s military service. A person whose military service lasted 1 to 90 days must be “promptly reemployed” in the job the person would have held had the person remained continuously employed, so long as the person is qualified for the job or can become qualified after reasonable efforts by the employer to qualify the person.  If an employee is unable to become qualified for said position, the employer must reemploy the person in a position that is the nearest approximation to the position they held which the person is able to perform, with full seniority. For persons whose service was longer than 90 days; a person must be re-employed in the job the person would have had OR a position of equal seniority and pay if the person is qualified or can be trained to be qualified in that equal position.

In other words, the “escalator” principle applies. The escalator principle requires that each returning service member actually step back onto the seniority escalator at the point the person would have occupied if the person had remained continuously employed rather than leaving for service duties.

Attorneys who handle employment cases exclusively, including USERRA cases, are in our office at 525 4th Ave South, Nashville, TN 37212.  If you believe your rights under USERRA have been violated or you simply have questions about your rights you can contact us online or by calling 800.705.2121.

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