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Written by AskTheLawyers.com™ on behalf of John Romano with Romano Law Group.
Civilian employers failing to protect and abide by service members’ rights has long been a problem in the United States. According to NATO, the U.S. military’s reserve components consist of 1.1 million members, and according to Statista, the Army National Guard consists of more than 336,000 members. Due to the part-time nature of these positions with service members being called to action only for brief periods of time over the course of their military career, these service members rely upon civilian employment to sustain their livelihood and their families. If you are a service member who believes their civilian employer might be discriminating against you based on your military service, reach out to an employment law attorney to discuss your situation.
When these workers are called away for periods of time to honor military obligations such as mandatory training, drill, and deployments, civilian employers are required to follow certain rules to protect that service member’s employment. When a civilian employer fails to abide by federal and state laws designed to protect their service members’ from discrimination, they open themselves up to significant liability.
There is no arguing that a service member’s occasional absence from their civilian job can be inconvenient, but it’s important for employers to remember that it is equally inconvenient for the service member themself, yet is a necessary part of the infrastructure of our country.
USERRA applies to past and present members of the uniformed service and guarantees certain protections to those members under federal law. Civilian employers are required to not only be familiar with USERRA requirements, but to abide by them regardless of their employee’s military obligations. USERRA requires civilian employers to maintain a service member’s position while they are away and return either that position or an equivalent position to them when they return. Under USERRA service members are also required to be given the same opportunity for promotions, pay raises, and other benefits that any other employee would receive.
Unfortunately, it is not uncommon for civilian employers to seek loopholes to demote or otherwise discriminate against their military employees due often to the inconvenience of their time spent away on military obligations.
One of the common loopholes attempted by civilian employers is an unofficial demotion of their employees returning from military orders. In these situations, the employer will often move the employee to a new position in such a way that although the employee does not necessarily lose pay, they do lose status. This may be done out of spite, or out of a desire to mitigate the inconvenience of the service member’s periodic absence.
If a service member returns from orders to find that their civilian employer has changed their position to what feels like “a demotion without calling it a demotion”, this could be a sign that their employer has violated USERRA. According to this Act, employers are required to provide returning service members with the same job they left for the same pay. If the position had to be filled for work to continue while the service member was still away on orders, the employer must provide them with another position that is completely equivalent in status, pay, and benefits.
Employer Support of the Guard and Reserves (ESGR) Ombudsman Services can be reached over the phone or on their website. Although the ombudsman cannot provide official legal representation, they can give you a better idea of whether or not a USERRA violation has occurred. If discrimination appears to be at play, ESGR will then contact your employer to begin mediation and advise you on the next steps to take; as a service member, all of this comes at no cost to you.
If your ombudsman is unsuccessful in resolving the problem, it might be time to contact a military rights attorney about your options. Employers are required to treat their military employees exactly the same way they treat their civilian employees; when a company fails to do so, they open themselves up to the possibility of a lawsuit to correct the violation and compensate the service member in question.
To learn more about service member employment rights or to discuss the viability of your claim, reach out to an employment law attorney.
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