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Top Military Discrimination Attorney Answer: What Happens If My Job Will Not Rehire Me?

On Behalf of | May 6, 2014 | minimum wage violation, overtime time violation, tipped employee violations |

Best Armed Forces Lawyer Answer: Do I have the right to be rehired after serving in the Army, Navy, Air Force, or Marines? Can I be fired for serving in the military? What do I need to do to protect my USERRA rights? How do I find the best Ohio military discrimination and wrongful termination attorney?

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The Uniformed Services Employment and Reemployment Rights Act (“USERRA”) is a federal law that protects those who serve in our nation’s armed forces. Specifically, USERRA grants the right for service members to be reemployed upon completing their service time. In addition to the reemployment rights, USERRA makes it unlawful for any employer to discriminate against their employees because of their military service or obligation.

In order to be protected under USERRA for reemployment rights, the employee must; (1) leave the civilian job to perform service in the armed services; (2) gives the employer advance written or verbal notice of the military service; (3) has five years or less of cumulative service in the armed services while with that particular employer; (4) timely return to work or apply for reemployment at the same employer after completing his or her service time; and (5) not have been separated from service with a disqualifying discharge or a discharge in other than honorable conditions. Every employee that meets these conditions must be restored to the position and benefits that he or she would have progressed to if that employee had not been absent because of the time spent in military service. Once reemployed, the employee cannot be fired without just cause for a period of one year following reemployment.

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Let’s take a look at the military discrimination case of William Dubiak, who left his employment for South Abington Township Police Force in May 2009 to serve in Iraq as a member of the Marine Corps Reserve. Dubiak returned from serving his county in December 2009 and notified the township he wished to be reemployed, but officials refused to rehire him.

Dubiak had been scheduled to be released from active duty in January 2010 and notified the township of his right to reemployment. However, the employer did not permit Dubiak to return to his job, which resulted in Dubiak going back on active duty. On May 10, 2010, the Township terminated Dubiak, who then received an honorable discharge from the Marines on June 18, 2010.

Dubiak filed suit alleging violation of USERRA. The Township argues that Dubiak had still been on the department’s rolls at the time that he came back from active military duty, but that he failed to properly cooperate with a Township investigation into various alleged personnel issues.

The Township claimed that it fired Dubiak for insubordination, neglect and violation of his official duties. From my perspective, it is hard to understand how an employee can be insubordinate while presently serving in Iraq.

Nonetheless, the defendant employer made this argument in moving to dismiss the military discrimination case: “In its Motion, Defendant argues that Section 4311 cannot apply as a matter of law to Dubiak’s claim because 4311 only applies ‘after reemployment has occurred.’ … Citing extrajurisdictional cases, Defendant argues that ‘USERRA’s reemployment provision found in section 4312 protects military members up until the moment they are reemployed, while other sections of USERRA, such as the antidiscrimination provision found in section 4311, only protect the member after reemployment occurs.’”

U.S. District Judge Robert D. Mariani rejected this argument, holding that the “statute clearly applies to situations where the discriminatory treatment is itself the refusal to hire.” Furthermore, the court specifically rejected the employer’s arguemt:

First, Section 4311 explicitly states that a member of the uniformed services “shall not be denied … reemployment … on the basis of that membership.” 38 U.S.C. § 4311 (a). This section is perfectly clear on its face, thus precluding Defendant’s interpretation. … Second, even if the section were ambiguous, “we construe USERRA’s provisions liberally, in favor of the service member.” … Therefore, even if the language were subject to Defendant’s interpretation, this Court should not disregard an equally plausible pro­service­member interpretation. … Third, Defendant misinterprets the cases it cites in its support.

Now, this does not me that Dubiak wins, but he will get his day in front of the jury.

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.

Disclaimer:

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.