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You Need To Know: Can My Employer Fire Me While I’m On Military Orders?

USERRA was enacted to prevent discrimination based on active military deployment
Military Orders Can Be Hard Enough Without Worrying About Discrimination and Job Security

The United States values and appreciates sacrifices made by its military personnel. To protect the rights of those serving in the armed forces, Congress enacted the Uniformed Services Employment and Reemployment Rights Act (USERRA) to avoid employment discrimination against members of our armed forces. USERRA ensures that members of the military are granted certain rights and protections when they are called to serve their country. In this article, we will specifically address the concerns surrounding being fired, or otherwise discriminated against, while on military orders and the employee protections provided by USERRA.

What is the USERRA?

USERRA, also known as the Uniformed Services Employment and Reemployment Rights Act of 1994, is a federal law that safeguards the employment rights of individuals who serve in the U.S. military or other uniformed services. It applies to both public and private employers, regardless of the company’s size. USERRA aims to eliminate discrimination against employees due to their military service. It ensures their prompt reemployment upon their return from active duty.

The purpose of the USERRA is to make sure that military service members can go back to their civilian jobs after serving, without being treated unfairly or discriminated against–just because they were deployed. It also protects their employment rights to make sure they are not disadvantaged because of their military obligations.

What Protections Are Available Under the USERRA While I am on Military Orders?

A concern for military personnel when they receive new orders is the fear of being fired, demoted, or facing other adverse employment actions while they are on military leave. This is especially if they are injured. Fortunately, USERRA provides essential protections to prevent such situations. Here’s what you need to know:

  • Reemployment Rights: USERRA is a law that makes sure that when people leave their civilian jobs to serve in the military, they have the right to go back to their jobs when they come back. The employer must promptly reinstate them to the job they would have attained if they had not been absent due to military service. Put simply, the law says that employers must give a service member the same job they would have had if they didn’t leave for military service. This protection applies regardless of the length of the military service, as long as certain criteria are met. If an employee is injured while on military orders, the time to return to the job can be extended.
  • No Discrimination: Employers are prohibited from discriminating against employees based on their military service. It is illegal to deny initial employment, reemployment, retention, promotion, or any other employment benefit due to an individual’s military service. In other words, an employer can’t refuse to hire them, fire them, or treat them worse than other employees just because they are in the military.
  • At-Will Employment: Being on military leave does not shield an employee from lawful termination or disciplinary actions unrelated to their military service. However, employers cannot terminate an employee solely because they are serving in the military or due to the obligations and responsibilities associated with military duty.
  • Time Limitations: To qualify for USERRA’s protections, employees must give advance notice of their military orders to their employers, except when it’s impossible or unreasonable to do so. When their military duty is done, they have a certain amount of time to ask for their job back. This depends on the length of their orders and how long they were away from the job.
  • Benefits and Seniority: Employees on military orders are generally entitled to the same benefits, including health insurance, retirement contributions, and vacation accrual, as if they were still working and never stepped away from the job. Additionally, employers must factor in the employee’s military service when calculating seniority for purposes such as promotions and pension plans.

How do I enforce my rights if I am fired while on Military Orders?

If an employee believes their rights under USERRA have been violated, they can file a complaint with the U.S. Department of Labor’s Veterans’ Employment and Training Service (VETS) or pursue a legal remedy through a private lawsuit. VETS investigates complaints and seeks resolution, while legal action can provide damages and reinstatement.

How Much Does A USERRA Lawyer Cost?

The USERRA allows an employee to recover both lost wages and all attorney fees. For that reason, most lawyers will handle USERRA claims on contingency, meaning you don’t pay the lawyer unless there is a recovery on your behalf. Also, an employee is not prohibited from bringing other claims, such as wrongful termination, along with a USERRA claim.

Call Kaminsky Law for your Military Discrimination Claim

USERRA serves as a crucial safeguard for military personnel. It ensures them that they can fulfill their duty to the nation without jeopardizing their civilian employment. If you or someone you know has been fired while on military leave or refused their position upon return from leave, contact our experienced employment law attorneys today. We can help ensure that your rights are protected and advise you on what types of remedies may be available.

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Aubrie Linder
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