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Military Status Discrimination FAQs

Military Status Discrimination FAQs

You Fought For Your Country, Now Let Us Fight For You

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.

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DISCLAIMER: These answers do not constitute legal advice or guidance.