Uniformed Services Employment and Reemployment Rights Act Archives

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National Guard and Reserve

January 27, 2020/in Active Duty, Military, National Guard, Reserves

Serving in the National Guard & Reserve

Contributed by Alan Rohlfing

Full disclosure: I ‘grew up’ in the Reserve Component of the US Armed Forces. The Missouri National Guard, to be specific. It’s what helped shape me into who I am today and had a bearing on how I approached the various positions I held in the Army. And no surprise, it will be the lens through which I write the rest of this post. Consider me a fan of the National Guard and Reserve…

I’m not writing this because there’s a military draft on its way, or that we’re getting ready for an extended conflict in the Middle East…no, I’m writing on this particular subject because the reserve forces of these United States of America are so vital to our national defense that they deserve some attention every now and again.

What kind of forces are we talking about? It’s what some of us refer to as the Seven Seals: Army National Guard, Air National Guard, Army Reserve, Coast Guard Reserve, Navy Reserve, Marine Corps Reserve, and Air Force Reserve. Some of these part-time forces have been around for quite a while (the oldest is the National Guard, closing in on 400 years), and armories have been a hub in many of our communities for decades. And while many of us are familiar with the similarities, I talk with folks all the time who are surprised when they discover the differences between those components of our military reserve.

Some of those differences are branch-specific; with Army forces, both Guard Soldiers and Army Reserve Soldiers train one weekend per month and two weeks every summer (but there may be opportunities to go on orders for extended periods). Both National Guard and Army Reserve Soldiers can be called into full-time service to support Army missions (and not just for combat deployments). The primary distinction, though, is that National Guard Soldiers serve a dual mission…either a State’s Governor or the President of the United States can call up the National Guard, for state emergency duty or a federal mobilization. That’s just what the Army has to offer for potential Citizen-Soldiers…the other branches of service have their own ways of doing business, and their own opportunities. Just know that today, serving in the Guard & Reserve is so much more than one weekend a month & 2 weeks in the summer.

Way back in the mid-1980s, when I joined the local National Guard unit while I was going to college, it was a different fighting force than it is today. While we were proud of our ability to shoot, move, and communicate (yes, I was in a Field Artillery unit), at the local armory it seemed more about the camaraderie and sense of belonging than anything else. But that was pre-Desert Storm, and pre-Global War of Terror. During that decade after the first Gulf War, leading up to 9/11, it felt like our reserve forces were changing…more modern equipment for many of our units, more inclusion by our active duty counterparts. Less about being “in the rear with the gear,” if we were even called up at all. Today, many of our brothers and sisters in the National Guard & Reserve, like their counterparts on active duty, have multiple deployments under their belt while also playing a pivotal role in their local community.

Many of the challenges that traditional members of the reserve component face revolve around their civilian employment…either juggling their co-careers (military service and a civilian occupation) or finding that good civilian job in the first place. I’ve spoken with too many job-seekers over the last decade who feel they’ve dropped out of consideration for an open job when that employer finds out they serve in the Guard or Reserve. I’d like to think that it’s a rare occurrence, not just because it’s less than legal, but because it’s a bad business decision. Folks with military experience bring so much more to an employer’s workforce than those without; I always argue that it more than makes up for the time they may have to spend away on training or on a deployment.

Fortunately, for those that have a civilian job and get called away to serve, there’s USERRA, which is the Uniformed Services Employment and Reemployment Rights Act of 1994 (esgr.mil/USERRA/What-is-USERRA). USERRA is a Federal law that establishes rights and responsibilities for uniformed Service members and their civilian employers. USERRA “protects the job rights of individuals who voluntarily or involuntarily leave employment positions to perform service in the uniformed Services, to include certain types of service in the National Disaster Medical System and the Commissioned Corps of the Public Health Service.”

USERRA’s protections are intended to ensure that persons who serve or have served in the Armed Forces, Reserve, National Guard, or other uniformed Services: (1) are not disadvantaged in their civilian careers because of their service; (2) are promptly reemployed in their civilian jobs upon their return from duty; and (3) are not discriminated against in employment based on past, present, or future military service. Just as important, the law is intended to encourage non-career uniformed service so the United States can enjoy the protection of those Services, staffed by qualified people, while maintaining a balance with the needs of private and public employers who also depend on these same individuals. For more information on this Act and the agency that is its biggest cheerleader, check out Employer Support of the Guard and Reserve (ESGR), at esgr.mil. ESGR is a Department of Defense program established in 1972 “to promote cooperation and understanding between Reserve Component Service members and their civilian employers and to assist in the resolution of conflicts arising from an employee’s military commitment.”

I’m not a recruiter – never have been – but I maintain that it’s a great way to serve, if you’re qualified. And while, certainly, there are challenges with serving and maintaining a co-career in the Guard & Reserve, there are benefits, too. You might be eligible for G.I. Bill benefits, state-level tuition assistance to help pay for college, VA home loans to buy a house, and even health insurance. If you’ve separated from the Service & miss your time in uniform or know someone else that wants to serve, reach out to the local recruiter & see what’s on the table. With some of the Services, you’ll find over 100 different jobs you might be eligible for, from high-tech jobs to practical trade skills or vocations where you get to blow stuff up.

I thought I’d include some quick links here, just in case you want to make a connection (yes, a Military Connection). Keep in mind that these links may change, or the links might stay the same but the options for joining might be different based on the needs of that particular Service. Visit the Army National Guard at https://www.nationalguard.com/; the Air National Guard at https://www.goang.com/; the Army Reserve at https://www.goarmy.com/reserve.html; the Coast Guard Reserve at https://www.gocoastguard.com/reserve-careers; the Navy Reserve at https://www.navy.com/forward; the Marine Corps Reserve at https://www.marforres.marines.mil/; and the Air Force Reserve at https://afreserve.com/.

So, when you come across that ‘weekend warrior’ in your local community, I encourage you to see beyond the uniform. Sure, you can thank her or him for their service, or show your appreciation in other ways; but I hope you consider more consciously the challenges they face, even in times of peace and no deployments. Consider how they juggle the co-careers of military service and a civilian occupation, or how they’ll leave it all behind to deploy when necessary. And if you weren’t already, I hope you’re now a fan of the National Guard and Reserve, too.

Until next time…

Veteran Wins $170,000 Judgement Over USERRA Violations

August 2, 2017/in Employment, Military, Military News, Military Veteran, Veteran News

wright

By Debbie Gregory.

A former Jamestown, NY police officer has been awarded a settlement of $170,000 in damages from the city after a judge found he was discriminated against by the police department because of spending time away from the force due to his service in the Army Reserve.

Timothy Wright was deployed to Iraq in 2004 and served two six-month deployments to Afghanistan, beginning in 2009.

In 2007, Wright, who is now the chief of police in the Town of Carroll, filed a claim under the Uniformed Services Employment and Reemployment Rights Act (USERRA), saying the department did not include his terms of military service when calculating his vacation time. He claimed he was also denied a promotion. USERRA exists to protect military reservists against such discrimination.

In 2014, a Supreme Court jury in Chautauqua County ruled in Wright’s favor regarding the vacation time that was unfairly calculated, but ruled against him re: the missed promotion. The city and police department moved to appeal the decision but then dropped the action.

On July 17, State Supreme Court Justice Frank A. Sedita awarded Wright $44,656 in compensation, an additional $44,656 in damages and more than $83,000 in attorneys’ fees and costs.

In 1994, when Congress enacted USERRA, it stated explicitly that veterans and service members cannot waive any of their rights under USERRA, that they have a right to enforce their rights in federal court, and that they cannot be required to arbitrate their USERRA claims. USERRA is part of the U.S. government’s effort to ensure that military personnel are not penalized for serving their country.

The ruling is a victory for all veterans who may experience discrimination when they return to their jobs after their military service.

Military Connection salutes and proudly serves veterans and service members in the Army, Navy, Air Force, Marines, Coast Guard, Guard and Reserve, and their families.

Supreme Court Asked to Take Up Workplace Rights for Reservists

July 5, 2017/in Employment, Military, Military News, Military Veteran, Veterans Benefits

supreme court

By Debbie Gregory.

Lawmakers are asking the Supreme Court to decide whether military reservists’ unfair dismissal claims can be forced into arbitration by their civilian bosses.

Because the case involves veterans’ rights, the legislators are hopeful that the Supreme Court will show appreciation for our citizen soldiers by allowing them to legally stand up for their workplace rights.

The filing’s intention is to overturn a previous appeals court ruling against Kevin Ziober, a Navy reservist who sued his employer for firing him before his year-long deployment to Afghanistan.

In mid-May, Connecticut Democratic Senator Richard Blumenthal spearheaded the filing of a amici curiae brief , also known as a “friend-of-the-court” brief on behalf of himself, six fellow senators and 13 House members.

The members of Congress urged the Supreme Court to reaffirm a longstanding principle that all veterans’ rights laws must be interpreted for the benefit of veterans. It is also imperative to protect veterans and servicemembers against waiving any of their rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA), including their procedural enforcement rights like the right to file an action in federal court.

“They’re serving and sacrificing so we have these rights, and then they come home and they are denied those very rights that they are fighting to uphold.”

The aforementioned case alleges that in 2012, real estate company BLB Resources told Ziober he was out of a job. The company denied wrongdoing, saying it terminated Ziober for sub-par performance on a federal contract assignment, and not for his deployment.

Upon returning to the U.S., Ziober brought a lawsuit against BLB under the Uniformed Services Employment and Reemployment Rights Act (USERRA) a 1994 law banning companies from discriminating against employees for taking time away from work to serve in the reserves.

If the Supreme Court accepts the lawmakers’ request, it could finally end what has become a pain point for employment in several industries.

Military Connection salutes and proudly serves veterans and service members in the Army, Navy, Air Force, Marines, Coast Guard, Guard and Reserve, and their families.

Court Rules Against Navy Reservist in USERRA Case

November 11, 2016/in Government, Military, Military News, Veteran Employment

By Debbie Gregory.

A high-level federal court delivered a blow to the rights of military reservists.

Kevin Ziober was a lieutenant in the Navy Reserve in 2012 when he received deployment orders to Afghanistan. After co-workers gathered to give Ziober a proper sendoff, he was summoned to the human resources office.

And then he was fired.

Ziober believed the dismissal was the direct result of the inconvenience his military service caused his employer. The Uniformed Services Employment and Reemployment Rights Act (USERRA) exists to protect military reservists against such discrimination.

Ziober lost his case before the Ninth Circuit U.S. Court of Appeals, one step below the U.S. Supreme Court, which ruled that his pre-employment arbitration agreement prohibited him from suing his former employer.

Six months into Ziober’s tenure at real estate management firm BLB Resources, he stated that the company asked him and other employees to sign an arbitration agreement in order to remain employed. The agreement was presented to them on a take it or leave it basis. Ziober, like other employees who needed their jobs to support themselves and their families, felt that he had to sign it.

BLB Resources disputed Ziober’s version of the events, saying that his firing became necessary when the federal contract to which he was assigned was not renewed.

Protecting service members from employment discrimination is directly linked to military readiness and the Defense Department’s ability to recruit and retain more than 800,000 part-time troops every year.

Although the court ruled against Ziober, the judge appeared to urge Congress to consider changing or strengthening USERRA.

Military Connection salutes and proudly serves veterans and service members in the Army, Navy, Air Force, Marines, Coast Guard, Guard and Reserve, and their families.

United Airlines Sued By US Government Over USERRA Violations

September 9, 2016/in Government, Military, Military News

By Debbie Gregory.

Apparently the skies are not so friendly when it comes to Uniformed Services Employment and Reemployment Rights Act (USERRA).

The U.S. government has filed a lawsuit accusing United Airlines Inc for violating a pilot’s employment rights by failing to provide sick leave when he was called to active duty by the U.S. Air Force, where he was a reservist.

USERRA is part of the U.S. government’s effort to ensure that military personnel are not penalized for serving their country, including legal actions to stop improper home foreclosures and car repossessions.

The complaint alleges that United failed to credit Lieutenant Colonel Daniel Fandrei with sick leave while he was deployed as a KC-10 pilot in southwest Asia from December 2012 to March 2013.

United offered the benefits to other employees on similar leave, violating USERRA.

“Lt. Col. Fandrei has made many sacrifices to serve our nation honorably, including spending months away from his job and family,” said U.S. Attorney Zachary T. Fardon of the Northern District of Illinois. “When our servicemembers are deployed in the service of our country, they are entitled to retain their civilian employment and benefits, and to the protections of federal law that prevent them from being subject to discrimination based upon their military obligations.”

United believes its policies comply with USERRA, iterating that the company is “committed to supporting the many aviation professionals at our airline who served or who are currently serving in the military.”

The Justice Department said Fandrei, of Fairfield, California, worked at the time of his deployment for Continental Airlines, whose contract with its pilots did not let them accrue sick leave during military deployments.

United and Continental had merged in 2010.

According to the complaint, Fandrei was commissioned as an Air Force officer in 1990, and retired from the Air Force Reserve as of Jan. 1, 2016.

He joined United as a pilot in 2000, and was recalled from a furlough six months before being deployed, the complaint said.

Military Connection salutes and proudly serves veterans and service members in the Army, Navy, Air Force, Marines, Coast Guard, Guard and Reserve, and their families.

Military Connection: USERRA Law- Employees Who Serve and Promotions

June 5, 2015/in Military, Military News, Military Veteran, Veteran News, Veterans Benefits

By Debbie Gregory.

According to the U.S. Department of Labor, the Uniformed Services Employment and Reemployment Rights Act (USERRA/USERRA Law) of 1994 is in place to protect the reemployment rights of service members and Veterans. When they return from a period of service, including when they are called to active service through the Reserves or National Guard, USERRA Law prohibits employer discrimination based on military service or obligations connected to military service. The law states that employers cannot refuse to hire, reemploy, retain or promote or deny any benefits of employment because of an individual’s military duty.

USERRA Law has established that the cumulative length of time that an individual may be absent from work for military duty and still retain reemployment rights is five years. The previous law provided four years of active duty, plus an additional year if it was for the convenience of the Government. USERRA clearly establishes that reemployment protection does not depend on the timing, frequency, duration, or nature of an individual’s service, as long as the basic eligibility criteria is met.

Disabled Veterans and their employment rights are also protected under USERRA Law. Employers are required to make reasonable efforts to accommodate a disabled Veteran’s disability. The law also provides protection to service members convalescing from injuries received during service or training, allowing them up to two years from the date of completion of service to return to their jobs or apply for reemployment.

Another function of USERRA is to make major improvements in protecting service member rights and benefits by clarifying the law, and by assessing and improving the systems of enforcement for USERRA Law.

One of the main rights protected by USERRA is that returning service members be reemployed in the job that they would have attained, had they not been absent for military service. This means the same seniority, status and pay, as well as other rights and benefits determined by seniority. USERRA Law also requires that reasonable efforts, including training or retraining, be made to support returning service members to refresh or upgrade their skills to help them qualify for reemployment. The law clearly provides for alternative reemployment positions if the service member cannot qualify for the position. USERRA also provides that while an individual is performing military service, he or she is deemed to be on a furlough or leave of absence, and is entitled to the non-seniority rights accorded other individuals on non-military leaves of absence.

Under rights protected by USERRA Law, an employer cannot legally pass over Reservists or members of the National Guard for promotions due to concerns over how their military obligations have impacted or will impact their attendance. Ordinarily, employers are allowed to use past or anticipated absenteeism when considering a candidate for promotion. But under USERRA Law, such resolutions are deemed illegal when the prior or expected absences are military-related.

Employees who think they were passed over for promotion because of their military service or obligations should immediately consult with a military law attorney. Depending on the circumstances, the attorney could show that the employee’s military duty was a motivating factor behind the adverse personnel action, and in violation of USERRA Law.

Military Connection proudly serves those who serve in the Army, Navy, Air Force, Marines, Coast Guard, Guard and Reserve, Veterans and their families. We are the go-to site for Veteran Employment and information on Veteran education. Militaryconnection.com provides Veterans with and Directory of Employers, a Job Board, information on the Post-9/11 GI Bill, and a blog that offers Veterans boundless information. Be sure to visit Militaryconnection.com, the go-to site.