Spitz, The Employee’s Law Firm

Military Status Discrimination

Military Status Discrimination

Helping Those Who Fought For Us

God bless those that serve and protect our country, whether active, reserve or a veteran of the Army, Navy, Air Force, Marines, or Coast Guard, but military discrimination is a real problem when they return from service or training. There are employers that act illegally against the military men and women who dutifully serve our country. As horribly unpatriotic as this sounds, this type of military discrimination occurs every day in Ohio (including Cincinnati, Cleveland, Columbus, Toledo, Youngstown and Dayton).

But, thankfully, the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) provides that military personnel who qualify must be given their old jobs back upon return from service and it also prohibits discrimination based on an employee’s military service. At Spitz, The Employee’s Law Firm, we help our service members with all manner of employment issues.

What Is USERRA?

USERRA offers those who serve our country with several important rights and protections. First, it prohibits discrimination against those who have served based on their military status for hires, promotions or any benefits.

USERRA also requires employers to re-employ returning service members if the following five conditions are met:

  1. The returning service member was in a civilian job;
  2. The returning service member must have given notice that he or she was leaving the job in order to perform uniformed service, unless notice was impossible or impractical under the circumstances;
  3. The period of service did not exceed five years;
  4. The returning service member must not have received a dishonorable or another form of punitive discharge from the service; and
  5. The returning service member must report back to work in a timely fashion after being discharged or submit a timely application for reemployment.

Returning service members have greater protection than any other protected employee class because of USERRA. For six months after returning to work, an employee returning from military service of between 30 and 180 days cannot be fired by their civilian employer without cause. And, for returning employees who served for more than 180 days, their employers cannot terminate them for a full year after reemployment except for cause.

USERRA further provides that a service member returning to a job after a military leave under is entitled to the same level of seniority and job status that the service member would have obtained assuming no gap in employment for military leave. Stated more simply, your seniority still accrues even while you are serving in the service of our military.

When To Suspect Discrimination

If you are or were a military service member of the Army, Navy, Air Force, Marines, or Coast Guard, you may have a military discrimination claim if you find yourself saying:

  • My civilian job would not reemploy me when I completed my military service.
  • I was fired two months after returning from military service in the Army, Navy, Air Force, Marines, or Coast Guard.
  • My job would not let me keep my health care benefits while I was away for military service.
  • I was forced to use my vacation time to cover my reserve training.
  • I lost a promotion based on seniority while I was serving in the Army, Navy, Air Force, Marines, or Coast Guard.
  • My boss would not give me the training I missed when I returned from the Army, Navy, Air Force, Marines, or Coast Guard.
  • The company I work for would not give me a work accommodation after I was injured in the Army, Navy, Air Force, Marines, or Coast Guard.
  • My manager fired me after I complained about USERRA violations.
  • I want to sue for military discrimination.
  • I was told that I would not be promoted because I would be away too much for reserve training.
  • I was demoted after leaving for military training.
  • My civilian job wrongfully fired me a few weeks after I returned from active duty in the Army, Navy, Air Force, Marines, or Coast Guard.
  • I was fired today when I told my boss that I was being called up for active duty in the Army, Navy, Air Force, Marines, or Coast Guard.

Because we know that many clients are not able to afford the costs of litigation up front, we take on more cases on a contingency fee basis than most firms. Contingency fee agreements mean that the client need not pay any fee for legal services unless and until our employment attorneys recover money and/or results on your military status claim.

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Military Discrimination FAQs

While it shouldn’t exist, the sad fact is military status discrimination can and does occur in Ohio and throughout the country. Did it happen to you? Here are a few questions you may have concerning this issue:

Who Qualifies Under USERRA? Do I Have Any Rights Under USERRA?

Military Status Discrimination Attorney: USERRA covers virtually all members of the Armed Force, including members of the Army, Navy, Air Force, Marines, Coast Guard, and Public Health Service commissioned corps, as well as members of the Reserves.

Can My Boss Make Me Use Vacation Time While On Military Service Leave?

Military Status Discrimination Attorney: No. A civil employer is not permitted to require a military service member to use accrued vacation during a service-related absence. However, if the military service time occurs at the same time when all employees are required to use vacation time, such a plant shutdown, the employer can require the military service member to do the same. While the civil employer cannot force a military service member to use vacation time to serve in the Army, Navy, Air Force, Marines, or Coast Guard, USERRA allows the usage of vacation time during military service if it is at the employee’s request.

How Long Do I Have To Seek Reemployment After My Military Service Ends? When do I Have To Go Back To My Civilian Job After Being Discharged From The Army, Navy, Air Force, Marines, or Coast Guard?

Military Status Discrimination Attorney: Under USERRA, a military member has a limited amount of time to seek reemployment from a civilian employer. For military leaves lasting 30 days or less, returning military members must report to their civilian job the next workday after returning from service, although this can be extended by eight hours for sleep and reasonable time to travel home. If the military leave was for 180 days or less (but over 30 days), the returning military member is given 14 days to contact his or her civilian employer and request to return to work. And, if the military leave last for more than 180 days, the returning service member will have 90 days to notify the civilian employer of his or her intent to return to work. However, it is important to note that in situations involving injury or illness, USERRA gives up to two years after active service (and possibly longer) to recover before returning to work in a civilian job.

What If I Do Not Timely Report To My Job After My Military Service Ends? Can I Be Fired If I Don’t Report Back To My Civilian Job In Time?

Military Status Discrimination Attorney: A returning member of the military who does not timely report back to his or her civilian job still cannot be outright fired or refused reemployment. Instead, the civil employer is still required to apply its general disciplinary protocols. For example, an employer that uses a point system can give the returning military services member points for each day that he or she is past the USERRA notification deadlines, and then fire the military service member only when the accumulated points would equate to termination under the company’s progressive discipline policy or other attendance protocols.

Are There Any Exceptions That Would Allow My Employer Not To Give Me My Job Back When My Military Service Ends? Is There Any Way That My Boss Still Could Stop Me From Coming Back To My Civilian Job?

Military Status Discrimination Attorney: Yes, there are some exceptions. First, under most circumstances, a company is generally not required to give a military service member his or her job back upon completion of service if the military leave lasted more than five years. USERRA may not provide protection for military service members to return to short-term or temporary positions, such as through a temporary staffing agency. Additionally, a civil employer has the option of trying to prove that rehiring the military service member would be impossible or unreasonable under the circumstance; or would otherwise cause an undue hardship to the company.

What If I Am Not Qualified For A New Position Upon Return From Military Service?

Military Status Discrimination Attorney: Assuming that the service member is entitled to a promotion based on seniority upon returning but is not qualified for the position, USERRA requires that the civilian employer undertake reasonable efforts to train or otherwise help the returning employee in obtaining the needed qualifications and skills for the position. Now, if such training is not possible (which may give rise to a debate and a legal claim), USERRA mandates that the returning employee be placed the closest approximate position for which the employee is qualified or can become qualified through available training.

What Employer-Provided Benefits Do I Get Upon Returning From Military Service?

Military Status Discrimination Attorney: Under USERRA, a returning employee is entitled to the same level of benefits that employee would have gained if the employee had not taken a leave from the job for military service, including medical benefits and pension benefits. In fact, the civilian employer is required under USERRA to continue providing these benefits to the employee while that employee is on military leave, with the employee being required to pay any portion that he or she would have had to pay if not on military leave.

What If I Am Injured Or Become Disabled During Military Service?

Military Status Discrimination Attorney: USERRA addresses this situation and provides that an employer must make reasonable efforts to accommodate any disability or injury which occurred or was aggravated while on that military leave. If you are disabled, you may also have rights under the Americans with Disabilities Act (“ADA”) and the Family and Medical Leave Act (“FMLA”).

What Type Of Damages Can I Get If My Employer Violates USERRA?

Military Status Discrimination Attorney: Employees may be entitled to a variety of damages for their employer’s violation of USERRA These may include injunctive relief in the form of reinstatement, compensation for lost wages and benefits; and additional liquidated damages if a court finds that the employer’s violation of the Act was willful. Because each case of military discrimination is different, it is best to meet with an employment law attorney to discuss your specific damages.

Can I Be Fired For Making A Claim Under USERRA?

Military Status Discrimination Attorney: USERRA also has, like the other federal anti-discrimination laws, a provision that bars retaliation against employees who have reported or complained about discrimination based on military status. This means that after you have reported a USERRA violation, your boss, manager, or supervisor cannot take any further adverse actions against you.

I was fired because I used military leave; can I sue? Do I have a claim for USERRA violation or wrongful termination?

Military Status Discrimination Attorney: Our employment attorneys have provided as much information as we possibly can on this website, but your particular chances to prevail on a claim for USERRA violation and wrongful termination cannot be properly evaluated without a discussion regarding the facts relating to your termination and employment situation. Because our employment law attorneys fight for employees’ rights every day, we offer a free initial consultation for Ohio claims. It is not worth guessing about your possible rights and claims when a call or a short email can get you a free answer.

If You’re Facing Discrimination, Be Sure To Call The Right Attorney™

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. 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.

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