Can an Employer Use Someone’s Military Service to Justify a Bad Performance Review?

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.

Dealing with periods of absence from military employees can be inconvenient for employers and servicemembers alike.

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.

An employer cannot use someone’s military service to justify a negative performance review or denied employment opportunity.

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.

If a civilian employer gives you a negative performance review based solely on military obligations, or otherwise violates USERRA, take the following steps:

• Notify your command. In many situations, a commander or military legal officer from the military can resolve the violation quickly and effectively. A civilian employer may not be aware of their legal obligations under USERRA and might simply need an authoritative nudge in the right direction.
• Contact the Ombudsman Services. If the issues persist after involving your command, reach out to the Ombudsman Services at ESGR National Headquarters by phone or over their website here. While this organization does not provide official legal counsel, they can provide mediation assistance and may be able to help educate your employer on the laws they are required to follow.
• Contact a military rights attorney. If the above steps do not yield corrective results, talk to a military rights attorney. You may be eligible to file a lawsuit against your civilian employer to seek compensation for damages including reinstatement in the job, return to justified position or pay raise, lost wages, back pay, back vacation pay, attorney fees, etc.

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.