Standing Up For Service Members’ Employment Rights
Service members should not have to decide between fighting for their country and protecting their nonmilitary jobs. We at Wilson Melton, LLC, actively and aggressively fight to protect service members from unlawful discrimination by unscrupulous nonmilitary employers. Our attorneys have handled many USERRA claims and continue to help service members understand their rights. If you are a service member and are being denied your USERRA rights, we may be able to help you. If your employer has discriminated against you while on military leave or upon your return, we can help you hold your employer responsible.
What Do You Need To Know About USERRA?
If you are a service member who believes that your employer is stepping on your rights, you can turn to us for answers to your questions. A great place to begin is this exact pave, where we have answered some of the questions you might have.
What is USERRA?
Uniformed service members returning from active duty have certain employment and reemployment rights. The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects service members’ reemployment rights when they are returning from a period of active duty in the uniformed services. It mandates that employers protect service members’ employment while on military leave.
Private employers are generally required to reemploy service members after they have returned from military duty. The employers are required to reemploy service members in positions that are the same or equivalent to the ones held by them before military leave and, at a minimum, at the pay rate they enjoyed before military leave. Employers cannot reduce service members’ pay and may be required to place the service members in a higher position with better pay if their employers have replaced the service members on military leave.
Service members returning from military leave are not to be treated as new hires or rehires. Service members’ employment records should show that their employment continued interrupted while on military leave. They should not lose benefits related to the duration of their employment, including vacation time, sick days, dental and vision insurance, and health insurance.
Employers must offer promotions to service members they may have obtained had they not left for military duty. Returning service members, whose career paths at their employers were rising (escalating), should not see their career paths disrupted by their military leave and should return to their employment where they would have been if they had remained employed. This is known as the escalator principle.
What is the time limit for job protection?
USERRA has a five-year limit on employment protection. This five-year period is cumulative. Once a service member has been on combined military leaves totaling five years, the employer no longer has to reemploy the service member. Specific types of military leave add up, and once that total reaches five years, an employer is no longer required to reemploy the service member. Some military activities do not count toward this five-year limit, including annual training and involuntary recall or retention for active duty.
Which service members does USERRA protect?
The protections of USERRA extend to service members of the:
- Navy
- Air Force
- Marines
- Army
- Coast Guard
- National Guard
- Uniformed Reserves
USERRA prohibits employers from discriminating against employees based on military service, commitment, or participation.
Can I get fired while on military leave?
Employers can fire employees who are on military leave if there is a valid reason such as a financial downturn, a loss of business or if the company is getting rid of the job role. However, employers may not take an employee’s military status into consideration when firing them. Doing so is an example of wrongful termination.
Wilson Melton, LLC, Fights for Military Service Members
The platoon of attorneys at Wilson Melton, LLC, has handled many USERRA claims successfully. If your employer has discriminated against you while on military leave or upon your return, we can help you hold them accountable. Call us at 317-827-8302 or use our online contact form.