If you’re called to active duty, or if you’re thinking about joining the military, you should know that federal and state laws grant military employees certain rights to unpaid leave and to be reinstated to their positions when their service is over. Here’s what you need to know.
The jobs of employees who are called to active duty or training are protected under the Uniformed Services Employment and Reemployment Rights Act (USERRA).
USERRA prohibits your employer from discriminating against you, whether you’re a current military employee, a veteran, or applying for membership in the uniformed services.
This federal law, which applies to employers across the country, covers employees who serve in the United States uniformed services, including the Army, Navy, Marine Corps, Air Force, Coast Guard, Reserves, National Guard, the Commission Corps of the Public Health Service, and any other category that’s designated by the president during a war or national crisis.
USERRA applies whether military service is voluntary or involuntary.
This isn’t to say your employer can’t fire you for misconduct or for another reason, though. Your employer can legally terminate you for a reason other than you being called up to military service.
If you serve in the uniformed services you may take up to five years of unpaid leave from your job and be reinstated if you meet these requirements:
Your deadline to apply for reinstatement depends on the length of your service. Here are the time guidelines:
If you meet the requirements for reinstatement your employer must return you to the position you would have held if you had been continuously employed. For instance, if employees are routinely promoted from an assistant to an associate after a two-year period, you would be entitled to that promotion—just as long as you are qualified for the job. If you aren’t qualified, your employer must make reasonable efforts to help you qualify, like providing training or accommodations.
As an employee returning from military leave your employer must make pay raises, seniority, additional work duties—or other benefits you would’ve received if you’d never left—available to you. Your employer may not fire you for a certain period of time without cause, depending on the length of your military service. With that in mind:
“Cause” generally refers to a legitimate, business-related reason. This might include a violation of company rules, excessive absences, insubordination, or other misconduct.
Under USERRA your employer cannot discriminate against you as a current military employee, veteran, or applicant for membership in the uniformed services. This applies to all aspects of employment, including, hiring, work duties, promotions, benefits, and firing.
Also, your employer may not retaliate against you as a military employee who exercises your rights under USERRA, which include taking time off, applying for reinstatement, filing a complaint for an USERRA violation, or participating in an USERRA-related investigation. Retaliation may include shift changes, exclusion from meetings or social events, or other changes that can be viewed as punishment.
If you were terminated after performing military service, we may be able to help you. Call our office at 818-230-8380 or fill out the form below to discuss your situation during a free consultation.
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