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Written by AskTheLawyers.com™ on behalf of John Romano with Romano Law Group.
It is unfortunately common for servicemembers to return to their civilian job after a deployment or training just in time for a performance review, only to find that they receive a negative score due to the time spent away for military obligations. Receiving a negative performance review can have a significant effect on an employee’s opportunity for promotion, raises, and even increased benefits and paid time off (PTO).
Not only is giving an employee a negative performance review due solely to time spent away for military obligations extremely unkind, it is also illegal. The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a law designed to prohibit discrimination against individuals due to their military service or obligations in the civilian workplace. USERRA prohibits civilian employers from denying servicemembers the same promotions, pay raises, and other employment benefits any non-military worker would receive in the same position.
It is undeniable that a servicemember’s military obligations may create some complications for civilian employers. One of the biggest issues is finding a temporary replacement for the employee during times when the employee is called away for deployments, training, or other military obligations. However, just as this is hard for civilian employers to navigate, it is just as if not more difficult for the servicemembers themselves. Not only do military employees have to deal with the stress of the actual military service, often conducted in unsafe, unwelcoming conditions, but they have to live with the added fear that when their orders end and they are sent home, their employer may have demoted them, cut their pay, or forced them to use all of their PTO.
This conundrum is the very reason why USERRA created, and to which all U.S. employers are bound. It is important to remember that the ability of part-time servicemembers to retain civilian jobs is vital to the survival of not only that employee and their family, but to the safety of the country as well.
It is illegal for civilian employers to overlook employees for promotions, pay raises, and other benefits because of their military service. An employee returning from military obligations must be allowed the same position and benefits they would have received had they never left. Performance reviews are a big part of this process, and a negative review cannot be justified unless the employee has actually engaged in misconduct in the workplace, not simply because they were away from work due to military orders.
It is important to remember that negative performance reviews may still be given for justified reasons, such as poor conduct or attitude while working at the civilian job. To learn more about how USERRA applies to the civilian employer-military employee relationship, reach out to a military rights attorney.
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