LAW OF THE LAND: USERRA — job protection for the weekend warrior

Keefe, Anchors & Gordon Issues

When the twin towers in New York City were destroyed on September 11, 2001, the attack started a chain reaction that resulted in a massive call to duty for members of the United States guard and reserves. Thousands were pulled from their day to day lives, family, and jobs for extended periods of time. While members of the guard or reserves are often referred to as “weekend warriors” — those called to duty after 9/11 were suddenly turned into full-time, week day and weekend warriors, serving in places such as Kuwait, Iraq and Afghanistan.

While it is inspiring to see news articles and television spots featuring such service members returning to surprise their children at school, and the crowds welcoming our heroes home, returning vets sometimes face transition issues. Some face problems associated with returning to work at their former jobs. Fortunately for these vets and their families, Congress passed the Uniformed Services Employment and Reemployment Rights Act (USERRA), making it illegal to discriminate against the vets based on their service.

USERRA protects civilian job rights and benefits for veterans and members of the U.S. armed forces, both active duty and reserve. USERRA requires employers of the service members to promptly reemploy them in the same position that they would have attained had they not been absent for military service, with the same seniority, status and pay, as well as other rights and benefits determined by seniority. In other words, the employer must give the service member the pay raises and seniority that would have been obtained if not for the military service.

In one stunning example, a Florida Army reservist, who was repeatedly called up to spend years at a time planning and supporting global military operations in places such as Kuwait, Afghanistan and Iraq, was reemployed, but was denied promotions and raises for a variety of reasons, including “lack of sufficient annual evaluations by his supervisor to support promotions during his military service.” In essence, the company admitted that the employee was being discriminated against because of his military service. After a USERRA challenge, the company agreed to promote the military member and paid over $90,000 in lost wages.

USERRA also makes it illegal for an employer to deny an individual employment in the initial hiring process. In one case, a Court held that an airline’s practice of refusing to interview candidates who weren’t able to begin training in a timely manner, based on military service obligations, was a violation of USERRA. The Court held that there is absolutely no defense for an employer who admittedly fails to hire a service member because of issues related to his or her service obligation. In many ways, USERRA is the strongest anti-discrimination law in the United States, providing ample job protection for our “weekend warriors.”

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Keefe, Anchors & Gordon

Keefe, Anchors & Gordon