USERRA Discrimination Lawyer
The Uniformed Services Employment and Reemployment Rights Act (“USERRA”) is a federal law that prohibits employment discrimination on the basis of military service. The goal of USERRA is to ensure that service men and women do not face hindrances to their private sector careers, such as denial of promotions, as a result of their service. If you believe that your employer has violated your USERRA rights by denying you a promotion to which you are entitled, contact Kraemer, Manes & Associates. Our experienced USERRA discrimination attorneys will fight to ensure that you are not faced with such discriminatory employment actions upon returning from your service duties.
Right to Reemployment
Employees who have been absent from work as a result of their obligations to a uniformed service are entitled to certain reemployment rights at their pre-service place of work. USERRA states in relevant part:
“A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in the uniformed services shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.”
An employer may not deny reemployment to a returning service member based on the timing, frequency, or duration of that service member’s obligations to a uniformed service, so long as:
- Service obligations do not exceed five years
- The service member provided his or her employer with reasonable notice of service obligations, unless such notice was precluded by military necessity or was otherwise impossible or unreasonable
- The employee was not released from service under dishonorable conditions
- The employee reported back to his or her pre-service job in a timely manner, unless such reporting was impossible or unreasonable
The Escalator Principle
USERRA provides that a returning employee is entitled to all the rights and benefits, including promotions, to which he or she would have been entitled if he or she had never left to participate in uniformed service. This concept is known as the “escalator principle.”
In the case of promotions, an employer must make reasonable training efforts to ensure that returning service members are qualified for their new positions upon returning to civilian work. Where returning service members cannot qualify for the positions to which they are entitled, the employer must reemploy them in the positions that most nearly approximate the positions to which are entitled in terms of status, pay, and other benefits, until they are eligible for the higher positions.
Determining Reemployment Positions
The position to which a returning service member is entitled, including all seniority rights, status, and pay that position encompasses, is determined by reference to any relevant collective bargaining agreements, specific employer policies, or general employment practices. The question is not whether the promotion would have arisen automatically, but rather whether it was reasonably certain that the returning service member would have attained the higher position but for his or her uniformed service obligations.
Returning service members are entitled to all rights and benefits they would have had on the date military service began, plus any rights or benefits they would have obtained had they remained continuously employed in their civilian positions. Thus, whether or not returning service members are entitled to a promotion will depend on factors such as their previous positions, their past performance, and the typical career trajectory of those in similar positions.
In addition to the right to reemployment, service members have the right to be free from employer retaliation motivated by their service in the uniformed services. This ban on retaliation encompasses any adverse employment action based on an employee exercising his or her rights under USERRA, and includes the retaliatory denial of promotions.
In order for denial of a promotion to qualify as a violation of USERRA, the denial must be motivated by the returning service member’s participation in the uniformed service. Denial of a promotion alone, without proof of discriminatory intent, does not qualify as a USERRA violation.
Promotional Exams and Make-Up Policies
Where a promotional exam is necessary for qualified employees to receive a promotion, the employer may not enact a policy that refuses service members away from work on military leave the right to take the exam at a later date. Such inflexible policies that do not allow for make-up examinations may constitute discrimination against members of uniformed services under USERRA.
KM&A USERRA Discrimination Lawyers
No service member should be forced to endure employer discrimination because of their military duties. If you believe that your employer has denied you a promotion in violation of your rights under USERRA, contact Kraemer, Manes & Associates at (412) 626-5626. Our experienced employment military lawyers know how to combat employer discrimination and will fight to make sure your rights are protected.