Military discrimination attorney answers: What if I am fired for serving in the military? What if an employer refuses to reinstate me after going on a deployment?
Under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), Employers must reemploy members of the military who return from deployment in the same position that they would have attained had they not been absent for military service, with the same seniority, status and pay, as well as other rights and benefits determined by seniority. However, you can only use a total of five years worth of military leave at any one employer, no matter how long you work there. Further, one cannot completely abandon their civilian job for a career with the military, and must seek re-employment upon returning from military service, or the protections of USERRA will not apply.
So what happen when an employer violates USERRA? Violations can be very costly to the employer. Take the story of Richard Erikson. Erikson, who is a Sergeant Major in the Army National Reserve, worked for the Post Office as a distribution clerk in its mail processing plant in Ft Myers, Florida for 12 years when he was fired for “excessive use of military leave.” However, Richard had not used more than five years of military leave when he was fired.
Erickson first joined the post office in 1988. Between 1991 and 1995, he was absent from the post office for military service for 22 months. From 1996 to the date he was terminated in 2000, he worked at the post office for a total of four days. Thus, the post office concluded that because Erickson had used more than 5 years of military leave, he was no longer entitled to USERRA’s protections, and they could terminate him without violating the law. However, the post office did not take into account certain exceptions to the 5 year rule in calculating Erickson’s total military leave, which are defined in 38 U.S.C. § 4312(c):
- Time spent in the military, beyond 5 years, to complete an initial period of obligated service;
- Time when, through no fault of your own, you are unable to obtain orders releasing you from a period of service ( such as “stop-loss”)
- Time which is necessary for professional development, or for completion of skill training or retraining;
- For reservist, time spent ordered to active duty;
- Any time that you spend on active duty under any provision of law because of a war or national emergency declared by the President or the Congress;
- Any time you spend on active duty in support, as determined by the Secretary concerned, of an operational mission for which personnel have been ordered to active duty;
- Any time you spend on active duty in support, as determined by the Secretary concerned, of a critical mission or requirement of the uniformed services;
- Any time a National Guardsman is called into federal service.
When Erickson was initially removed from the post office in 2000, he took no action. Instead, he re-enlisted with the National Guard for another 5 years, until December of 2005. Erickson then appealed his dismissal from the post office with the Merit Systems Protection Board (MSPB) for reconsideration (the MSPB is a special review board for employees of the federal government) nine months later, in 2006. However, MSPB found that the post office had terminated Erickson for “excessive absence” and not for his time spent on military leave. Erickson then appealed the MSPB’s decision to the Federal Circuit Court, which quickly criticized the MSPB’s double-speak:
In its notice of removal, the Postal Service stated that the sole reason for removing Mr. Erickson from his position was his excessive use of military leave. The [MSPB] acknowledged that “on its face” that admitted purpose would seem to constitute direct evidence of discrimination under USERRA. Nonetheless, the [MSPB] found that Mr. Erickson had failed to show that his military service was a motivating factor for the agency’s action because the “real reason” for his removal was his absence from work—regardless of whether that absence was caused by his military obligation.
We reject that argument. An employer cannot escape liability under USERRA by claiming that it was merely discriminating against an employee on the basis of his absence when that absence was for military service. As other courts have held, military service is a motivating factor for an adverse employment action if the employer “relied on, took into account, considered, or conditioned its decision” on the employee’s military-related absence or obligation. Petty v. Metro. Gov’t of Nashville-Davidson County, 538 F.3d 431, 446 (6th Cir.2008), quoting Coffman v. Chugach Support Servs., 411 F.3d 1231, 1238 (11th Cir.2005); see Robinson v. Morris Moore Chevrolet-Buick, Inc., 974 F.Supp. 571, 576 (E.D.Tex.1997), citing Price Waterhouse v. Hopkins, 490 U.S. 228, 241-42, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). The most significant—and predictable— consequence of reserve service with respect to the employer is that the employee is absent to perform that service. To permit an employer to fire an employee because of his military absence would eviscerate the protections afforded by USERRA, the overarching goal of which is to prevent those who serve in the uniformed services from being disadvantaged by virtue of performing their military obligations.
The Court then remanded the case to the MSPB. On remand, the MSPB concluded that while Erickson had been terminated for time spent on military leave, seemingly in violation of USERRA, Erickson had nonetheless waived his USERRA rights because he had “abandoned his civilian career in favor of a career in the military. The Board pointed to a number of factors that persuaded it that Erickson had waived his USERRA rights, such as (1) the length of Erickson’s active service in the military and the fact that he was serving his fifth consecutive voluntary reenlistment when the agency removed him, (2) a statement Erickson had made when the post office’s labor board had sponken with him prior to his termination, in which Erickson expressed a preference for military service over working at the post office, and (3) that Erickson had waited so long to appeal his termination. Erickson again appealed to the Federal Circuit Court.
On its second review, the Court again remanded the case to the MSPB, finding that “abandonment can be found only if the circumstances demonstrate a clear intention on the employee’s part to abandon his civilian career in favor of a career in the military,” and that the facts of Erickson’s case did not support such a finding. Importantly, the court noted that absent clear evidence to the contrary, employees who have not exceeded the five year period do not intend to abandon their civilian positions.
On its third review, the MSPB concluded that the post office had violated USERRA, and ordered it to reinstate Erickson, and to pay him the undisputed amount of back pay, interest, and other benefits. According to Erickson’s attorney, these damages could exceed $2 million.
The Erickson case makes clear that rules that seem simple- such as the five year rule that the post office got so wrong- are never as simple as they seem. That is why it is so important to call the right attorney the moment you think your employer may have violated the law. If you have questions about your employment or feel that you may have been terminated for an unlawful reason, you should not wait to call the right attorney at 866-797-6040 to schedule a free and confidential consultation. If you have been fired, discriminated against, denied wages, or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation at 866-797-6040. the Spitz law firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.
If you have been fired, discriminated against, demoted based on your military service, be it for the Army, Navy, Air Force, Marines or National Guard; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation at 866-797-6040. If you have been wrongfully terminated or fired for any reason within one year of returning from serving in the United States Armed Forces, you may have a claim. Do not wait. Call the right attorney now. You have protected us. Let us protect you. the Spitz law firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.
The materials available at the top of this page and at this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “How do I get reinstated after serving in the U.S. military (Army, Navy, Air Force, Marines or National Guard)?”, “What should I do if I was fired while serving in the military?” “My boss discriminated against me because …” or “I was fired within a year of returning from he U.S. military (Army, Navy, Air Force, Marines or National Guard)? What should I do?” — It would be best for to contact an Ohio attorney to obtain advice with respect to any particular employment law issue or problem. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of the Spitz law firm, Brian Spitz, or any individual attorney.