Employment Law Attorneys Best Answers: Does USERRA protect me from being demoted upon my return from military service? Do I get seniority at my civilian job while on military leave? Can I be forced to resign my civilian job when I come back from deployment?
My grandfather served in the United States Navy. I have a deep respect for all members of our armed forces who give more than we can possibly imagine protecting us every day. Unfortunately, many employers do not provide the amount of respect that our service member are entitled to. Thankfully, the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) provides legal protections and members and returning members of the Army and Army Reserve; Navy and Naval Reserve; Air Force and Air Force Reserve; Marine Corps and Marine Corps Reserve; and Coast Guard and Coast Guard Reserve.
Although our employment attorneys have blogged about military members’ rights under USERRA before, today I want to focus on the reinstatement rights under USERRA. (See Can I Lose A Job Because of My Military Service?).
Under USERRA, employers are required by law to reinstate employees following a military leave. While other leave laws, such as the Family and Medical Leave Act (“FMLA”) only mandate that the employer reinstate the employee to the same or comparable position, USERRA demands employers to reemploy service members to the position the service member would have attained but for the military service. This means that the returning military service member employee must receive the same seniority, status, pay, rights, and benefits they would have achieved as if he or she never went on the military leave. This is commonly referred to by employment lawyers as the “Escalator Requirement.” Very stringently, the Escalator Requirement applies even if it means that the employer must bump another employee out of the position, train the returning service member to fill the higher position, or find another comparable position if the “escalator” position no longer exists. Additionally, the employer cannot satisfy this requirement by temporarily putting the returning military service member employee in this position only to fire that employee a short time thereafter as USERRA mandates that an employer cannot terminate the employment of a reinstated employee whose military service lasted more than 30 days “without cause” for a period of 180 days, if the military service lasted 31 to 180 days, or one full year, if the military service lasted more than 181 days. As such, during this period, the returning military service member employee are no longer at-will employees during this period of time.
Moreover, the employee must be reinstated with the same benefits rights the employee had prior to his or her military leave and any additional benefits rights the employee would have attained if he or she had remained continuously employed. Thus, the Escalator Requirement likewise applies to benefits.
To be eligible under USERRA, the returning military service member employee must:
- have had or have applied for a civilian job;
- have provided notice to the civilian employer, either written or verbal, before to leaving for military service or training (except when notice is prevented out of military necessity);
- not have exceeded a five-year cumulative limit on periods of service;
- must have been discharge in a manner that was other than dishonorable; and
- must timely report back to the civilian job or timely submit an application for reemployment.
So, let’s talk about a recent example in the news. Michael Clancy is suing his former employee for the City of Lander, for violation of USERRA (among other claims). Clancy had worked for the City for 15 years and taken three military leaves as part of his service in the Army National Guard. There were no violations of USERRA during his leave between 2009 and 2010 while serving a combat deployment in Iraq. However, during his next two leaves, a new supervisor, Lance Hopkin, was in place.
However, upon returning from his deployment to Afghanistan, his employer denied his prorated salary and benefits. After some back and forth, the City finally relented.
This brings use to August of 2020. At that time, Clancy returned from a tour in Afghanistan. Instead of returning Clancy to his position at the Water Treatment Plant or complying with the Elevator Requirement, the employer, and specifically, Hopkin, assigned him to a lesser position at a cemetery despite a shortage in his former position as an operator at the plant. Although, Clancy was eventually brought back to the plant, the City further denied Clancy promotions. Indeed, Hopkin sent emails for a promotion for Water Superintendent to all the water treatment workers except for him, with the person eventually hired not having “the same administrative experience or seniority” as Clancy – even without including the seniority he supposed to accrue during military service. That email is a very bad piece of evidence for the employer as it directly points to its unlawful motive. Hopkin also discouraged Clancy from applying for an open HR position in favor of an Assistant Water Superintendent position, which Clancy later learned did not even exist.
Hopkin then created a pretextual reason for disciplining Clancy by calling him to come into work on short notice while Clancy was out of town, knowing that he could not make it in. (See Employment Discrimination Question: What Is Pretext?) When Clancy complained about the mistreatment and unreasonably poor reviews that he was getting from Hopkin, the City had Hopkin conduct the investigation into those complaints, which resulted in the City and Hopkin giving Clancy the option to resign and keep his retirement or be fired for “negligence, insubordination, and dishonesty,” so as to trigger the loss of his retirement benefits. A forced resignation will still be considered a wrongful termination.
According to County 10, Lander Assistant Mayor RaJean Strube Fossen stated, “No comment will be given while an active investigation is going on.” Gee, I wonder who is conducting that investigation now.
If these facts are true, shame on this employer from disrespecting our military servicepeople.
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. Call our Cleveland, Cincinnati, Columbus, Toledo, Boardman and Detroit attorneys right now. 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. 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 employment law page and at this wrongful termination 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 would not give me my job back when I returned from military service” or “I was fired within a year of returning from the U.S. military (Army, Navy, Air Force, Marines or National Guard)? What should I do if I was demoted when I came back from serving overseas?” — 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.