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 as a result of their service. If you believe that your employer has violated your USERRA rights, contact Kraemer, Manes & Associates. Our experienced USERRA attorneys will fight to ensure that you are not faced with any disadvantages upon returning from your service duties.
Types of Discrimination
USERRA protects those currently involved in the uniformed services and those seeking to apply for uniformed service from any and all types of employment discrimination in the civilian workforce. Specifically, the Act states:
“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 a uniformed service 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.”
The most common types of discriminatory employer conduct against service members are listed and explained below.
Failure to Hire
An employer cannot refuse to hire you because of your affiliation with the uniformed services. Even if your duties will definitely require one or more leaves of absence from work that will inconvenience the employer, that employer is not allowed to take your military service into account in making a hiring decision.
Refusal to Reemploy
You can take up to five (5) years of requested military leave away from your place of civilian employment. So long as you do not surpass this five-year limit, your employer cannot refuse to reemploy you upon returning from your participation in the uniformed services. This right to reemployment requires your employer to reemploy you in the same position you would have had if you had never left to partake in military duty, including status, seniority, and benefits associated with your position.
Denial of an Entitled Right or Benefit
An employer cannot refuse to give you a promotion to which you are entitled for fear that you will require too much time away from work to perform your military duties. Nor can an employer refuse to provide you with a promotion you would have had but for your absence from work to perform military duties. Likewise, you cannot be denied a promotion because you took too much time off to attend to your military duties.
Your employer also cannot deny you any benefit to which you would normally be entitled and which non-military employees in your position would receive, such as bonuses, benefits packages, privileges, and seniority.
While employers in Pennsylvania are normally free to fire an employee for any reason or no reason at all, special rules apply to service members returning to civilian employment after participating in military duty. For a reasonable period of time after returning from uniformed service, a service member’s employer can only fire him or her “for cause.” This means that if an employer wishes to fire a returning service member during this time period, it must have sufficient justification and must be able to show that the service member was warned that his or her conduct would lead to termination.
If a returning service member was away from work for military duty for a period of 31 to 180 days, the “for cause” termination requirement remains in effect for a period of 180 days. If the returning service member’s military duty exceeded 180 days, the “for cause” termination requirement remains in effect for a period of one year. If a service member is terminated inside this safe harbor without justification, the employer has unlawfully discriminated against that service member on the basis of his or her military affiliation.
The type of adverse employment action you have faced will determine what you need to prove. USERRA’s failure to reemploy and premature termination provisions are strict liability provisions, which means you only need to prove that your employer failed to do what the Act requires it to do. In these cases, you do not need to prove that your employer intended to discriminate against you on the basis of your military service, merely that it failed to live up to its legal responsibility to reemploy or retain you.
For all other USERRA claims, you will need to prove that your employer intended to discriminate against you on the basis of your military service. A successful USERRA discrimination claim has two steps. First, the employee must show that his or her military affiliation was a significant or motivating factor that led to one of the adverse employment actions above. Since employers often don’t admit their discriminatory conduct outright, it is oftentimes difficult to prove. Some examples of evidence that may be helpful in proving that your employer discriminated against you on the basis of your military service include:
- The length of time devoted to questioning you about your military service obligations during initial hiring and promotion interviews;
- Oral or written statements about your time commitments to military service, such as “We have serious reservations about the burden your ongoing military service would have if we hired you for this position,” or “We don’t think you would have the time to devote to this position given the frequency of your military duties”; and/or
- Oral or written statements from an employer evidencing animus and discriminatory intent toward service members, such as “This employee’s performance is sub-par due to his/her numerous absences for active duty training.”
- Proximity in time between the employee’s military activity and the adverse employment action;
- Inconsistencies between the proffered reason and other actions of the employer;
- An employer’s outright hostility towards members protected by USERRA together with knowledge of the employee’s military activity; and/or
- Disparate treatment of certain employees compared to other employees with similar work records or offenses.
Once you have met your burden of proving that your military duties were a motivating factor for the adverse employment action taken against you, it becomes your employer’s job to prove that it would have made the same decision regardless of your military duties.
No service member should be forced to endure employer discrimination because of their military duties. If you believe that your employer has discriminated against you 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.
- Date June 17, 2014