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After Returning From Military Service, Can My Civilian Job Delay My Start By Making Me Go Through A Screening Process? I Need A USERRA Lawyer Answer!

On Behalf of | Nov 11, 2014 | Employment Discrimination, Military Status Discrimination, Wrongful Termination |

Best Ohio Military Discrimination Attorney Answer: Does my civilian job have the right to re-interview me after I finish my Army Service? How soon after I am done with my Navy service does my civil employer have to give me my job back? Can my boss investigate the reasons for my discharge from the Air Force before allowing me back to work?

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Instead of wishing our nation’s veterans and active serving military members a happy Veteran’s Day, our employment discrimination lawyers wish you a full year of respect and appreciation for the job that you do protecting all us every day that you put on your uniform. In honor of the military men and women that server our country, our employment discrimination attorneys’ blog focuses on Uniformed Services Employment and Reemployment Rights Act (“USERRA”). Amending and strengthening the Veterans’ Reemployment Rights (VRR) Statute, USERRA was enacted in 1994 and signed into law by then President Bill Clinton.

While USERRA provides many protections to members of the Army, Navy, Air Force, Marines, Coast Guard, and Public Health Service Commissioned Corps, and Reserves, today our lawyers focus on the right to reemployment or reinstatement at the conclusion of your service time. As a member of the armed forces, USERRA requires that you be returned to your job and position immediately after you return from military service, even if you were a part time employee or still on probation at the time that you were called up.

My civilian employer will not let me start work after I got out of the Army. My boss told me that he would have to demote me if I wanted a job back after my Navy service ended. What should I do if my company did not hold my position while I was called up to serve in the Air Force?

As a returning service member, you have an absolute right to be immediately reinstated to your civilian job if you (1) have timely given your company advanced written or verbal notice of your service; (2) have five or less years of cumulative military service while working for your current civilian employer; (3) quickly seek reemployment or reinstatement at the end of your service time; and (4) were not discharged from the military under other than honorable conditions.

And, immediately means immediately. A case out of the Sixth Circuit Court of Appeals (Ohio) address this point. In Petty v. Metropolitan Gov’t of Nashville & Davidson Cnty., Brian Petty filed a military discrimination claim against the Metropolitan Government of Nashville-Davidson County (“Metro”) violated USERRA because it failed to reinstate him to his former position of patrol sergeant. By way of background, Metro hired Petty as a police officer in 1991 and was promoted in 2002 to patrol sergeant. In 2003, the Army deployed Petty as part of Operation Iraqi Freedom. In February 2004, Petty and his unit were then shipped to Kuwait. In January 2005, was caught making and sharing homemade wine, which resulted in his resignation. However, Petty’s DD-214 said he was separated under honorable conditions with a note that stated “in lieu of trial by court martial.”

In February 2005, after Petty sought to be reinstated as a police officer, Metro subjected

Petty to a drug screening, a personal-history-update questionnaire, and a meeting with a Police Department psychologist. The questionnaire asked: “During your absence were you arrested, charged, detained, or a suspect in any criminal action or military disciplinary action for any reason or do you have any action pending? If yes, explain in detail (use back if necessary).” In response, Petty wrote down “yes” and that he faced military charges in Kuwait, but not the details of the charges. Also, the DD-214 form submitted to metro had been enlarged when copied and cut off the “in lieu of trial by court martial” language. Metro, which has “zero tolerance” policy for dishonesty, challenged this answer, charged Petty with dishonesty, and launched an investigation. During the investigation and after a three week delay in any reemployment, Metro declined to reinstate Petty as a Patrol Sergeant, and instead made him answer telephone calls from the public. After the investigation was complete, Metro fired Petty.

The trial court held that Metro had the right to fire Petty for it perception that he was dishonest as part of the reemployment process. Petty appealed, and the Sixth Circuit Court of Appeals held that Metro violated USERRA’s reemployment provisions by even requiring Petty to participate with its return-to-work procedures and by delaying Petty’s reemployment during its investigation. The Sixth Circuit held: “Because Petty qualified for reemployment, … USERRA required Metro to fully reemploy Petty, regardless of any honesty issues arising from Metro’s return-to-work process.” To that end, the Sixth Circuit held that “rescreening employees before reemploying them” fell within USERRA’s prohibition on companies to putting “additional prerequisites” on returning service members. Having found a USERRA violation, the Sixth Circuit Court of Appeals sent the case back to the trial court for a hearing on damages.

The trial court then ordered that Metro immediately reinstate Petty a as patrol sergeant; awarded Petty $2,500 in back pay for the initial three-week delay in reemployment; $172,058.67 in back pay from the time of his termination until his court-ordered reinstatement; and $120,116.43 in partial liquidated damages. These amounts were affirmed during a second appeal.

So what are the take-aways? If you are returning from active duty, you boss, manager, or anyone else at your job cannot take any steps to delay your reemployment. Your employer cannot second guess whether your discharge should have been honorable. And, you have to be put immediately back in your former position. Once again, immediately means immediately.

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. Spitz, The Employee’s 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 Spitz, The Employee’s Law Firm, Brian Spitz, or any individual attorney.

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