USERRA “Military Discrimination”

Project Description

Uniformed Services Employment and Reemployment Rights Act Lawyers

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 and speak to a USERRA lawyer. An experienced USERRA lawyer or military attorney will fight to ensure that you are not faced with any disadvantages upon returning from your service duties.

Call Pittsburgh at
(412) 626-5626
Call Philadelphia at
(610) 616-5686
Email KM&A at
lawyer@lawkm.com

Who Does USERRA Protect?

USERRA Lawyer - Pennsylvania Employment Lawyers 412-626-5626

USERRA Lawyer – Pennsylvania Employment Lawyers

USERRA’s provisions apply to any employee who:

  • Is a member of a uniformed service;
  • Has applied or plans to apply to be a member of a uniformed service; or
  • Performs, has performed, has applied to perform, or has an obligation to perform service in a uniformed service.

“Uniformed services” include the Army, Navy, Marine Corps, Air Force, Coast Guard, Army National Guard, Air National Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services.

USERRA requirements are applicable to all employers doing business in the United States, public or private, regardless of size.

USERRA’s provisions protect those who engage in voluntary as well as involuntary military service, whether during wartime or peacetime. However, USERRA does not cover state call ups of the National Guard for disaster relief, riots, etc. Protections in these cases come from state laws. A USERRA lawyer is familiar with these laws and can help you determine which laws are applicable to your case.

What Protections Does USERRA Offer?

USERRA Lawyer - Pennsylvania Employment Lawyers 412-626-5626

USERRA Lawyer – Pennsylvania Employment Lawyers

Under USERRA, it is unlawful for an employer to take adverse employment action against any employee for participating in active duty, active duty for training, inactive duty training, initial active duty training, required fitness examinations, and/or funeral honors duty. A USERRA lawyer or military attorney can help an employee confront his or her employer for discrimination in the form of:

  • Failure to reemploy;
  • Premature termination;
  • Denial of an entitled right or benefit because of the employee’s participation in a uniformed service; and/or
  • Retaliation for engaging in activity protected under the Act, so long as the employee’s uniformed service was a motivating factor for the adverse employment action.

Each of these protections is discussed in greater depth below.  If you believe your rights under USERRA have been ignored or violated, contact a military employment attorney today.

FAILURE TO REEMPLOY

USERRA Lawyer - Pennsylvania Employment Lawyers 412-626-5626

USERRA Lawyer – Pennsylvania Employment Lawyers

Employees who have been absent from work as a result of their obligations to a uniformed service are entitled to reemployment at their pre-service place of work. 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; and
  • The employee reported back to his or her pre-service job in a timely manner, unless such reporting was impossible or unreasonable.

Reporting back in a timely manner requires that a returning service member notify an employer of his or her return based on the following time restrictions:

  • For service of up to 30 days: must report back by the beginning of the first regularly scheduled work period after the end of the calendar day of duty, plus time required for safely travelling home and eight (8) hours for rest;
  • For service between 31 and 180 days: must apply for reemployment within 14 days of completing military service;
  • For service over 180 days: must apply for reemployment within 90 days of completing military service.

These deadlines may be extended for up to two (2) years for those who are hospitalized for a service-related illness or injury. Application for reemployment need only indicate a returning service member formerly worked for the employer, has returned from military service, and is exercising his or her right to reemployment under USERRA.  A USERRA lawyer or military attorney can help make sure all deadlines for reentry into the workplace are met.

Any employee who comes back to work after participating in uniformed service is entitled to have his or her time away from work titled a “leave of absence.”

USERRA also provides that a returning employee is entitled to all the rights and benefits, including seniority, 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.” A USERRA lawyer or military attorney can help make sure the returning service member receives everything they are entitled to, specifically:

  • Prompt reinstatement;
  • Status;
  • Accrued seniority;
  • Health insurance coverage;
  • Other non-seniority benefits normally offered to employees; and
  • Any necessary training, retraining, or other accommodations.
USERRA Lawyer - Pennsylvania Employment Lawyers 412-626-5626

USERRA Lawyer – Pennsylvania Employment Lawyers

An employer must also make reasonable training efforts to ensure that a returning service member is qualified for his or her position upon returning to work. Where the returning service member cannot qualify for the position to which he or she is entitled, the employer must reemploy him or her in the position that most nearly approximates the position to which that service member is entitled and for which he or she qualifies.

USERRA prohibits employers from enacting any plan or policy that creates additional requirements to reinstatement. An employee’s legal right to reinstatement cannot be taken away due to his or her failure to meet an employer’s additional eligibility criteria.  If you are facing resistance to being reinstated, contact a USERRA lawyer or military attorney for help.

However, there are a few exceptions to USERRA’s right to reemployment. Employers are not required to reemploy a returning service member if:

  • The employer’s circumstances have changed in such a way that reemployment would be unreasonable or impossible;
  • Reemployment would cause undue hardship to the employer or would necessitate the creation of a useless job; or
  • The service member’s employment with the employer was of a temporary nature, and there was never any reasonable expectation that employment would continue for an extended duration.

To determine whether or not reemployment would be “unreasonable or impossible,” the relevant question is whether reemploying the otherwise qualified returning service member would necessitate recreating a useless position. If a returning service member’s job class has been completely eliminated from the employer’s organizational structure, then a court would likely find that reinstatement would be unreasonable. However, if a position is still relevant to the organization but has been filled by another employee, or if the returning service member’s job duties have been absorbed by various other employees throughout the company, the standard for unreasonableness would likely not be met. A USERRA lawyer or military attorney is used to evaluating the reasonableness of reemployment.

In determining whether reemployment would cause “undue hardship,” courts will look to various factors, including the nature and costs of reinstatement, the employer’s overall financial resources, and the size of the employer.  If you end up going to court, it is crucial to include a USERRA lawyer or military attorney in your case.  By consulting with an experienced USERRA lawyer or military attorney you give yourself the best chance of success.

PREMATURE TERMINATION

USERRA Lawyer - Pennsylvania Employment Lawyers 412-626-5626

USERRA Lawyer – Pennsylvania Employment Lawyers

In Pennsylvania, most workers are employed “at will,” meaning employers can terminate their employment at any time, with or without reason, so long as the reason for termination is not unlawful. However, USERRA alters the employment at will doctrine slightly to protect returning service members.  A USERRA lawyer or military attorney is able to tell you if your termination is lawful or unlawful under this act.

After returning from their service obligations, reemployed service members are entitled to a reasonable period of time during which they cannot be discharged from their position except “for cause.” If an employer wishes to terminate a returning service member during this time period, the employer must prove that it had sufficient reason to justify the termination and that the employee was informed and understood that his or her conduct would lead to termination.  If an employer does not follow this procedure, the employee should contact a USERRA lawyer or military attorney to challenge his or her termination. An experienced USERRA lawyer or military attorney should be able to have the termination reversed or hold the employer liable for lost wages.

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.  A USERRA lawyer or military attorney will make sure that these provisions of the act were followed.  If they were not, a USERRA lawyer or military attorney can file a claim on your behalf to collect damages and possible reinstatement of your employment.

DENIAL OF AN ENTITLED RIGHT OR BENEFIT

USERRA Lawyer - Pennsylvania Employment Lawyers 412-626-5626

USERRA Lawyer – Pennsylvania Employment Lawyers

If you believe you were denied an entitled right or benefit, contact a USERRA lawyer or military attorney. Your USERRA lawyer or military attorney will be able to inform employers of their failure to comply with USERRA and demand that they give the entitled right or benefit. Employers cannot deny service members the following rights and benefits if the denial was based on their past, present, or future obligations to a uniformed service:

  • Initial offer of employment;
  • Reemployment;
  • Retention in employment;
  • Promotion; or
  • Any other employment benefit to which the employee would normally be entitled, including profit, privilege, or increase in status.

These rights or benefits are protected by USERRA, an Act that an experienced USERRA lawyer or military attorney is familiar with. If you are a returning service member, consult with a USERRA lawyer or military attorney if you have any questions about the rights and benefits to which you are entitled. Using a USERRA lawyer or military attorney can help ease your way back into the workplace after serving our country.

RETALIATION

An employer cannot retaliate against an employee in any manner for exercising his or her rights under USERRA. If you believe you were retaliated against in any way, contact a USERRA lawyer. Specifically, an employer cannot take any adverse employment action against an employee for:

  • Exercising his or her protected rights;
  • Taking action to defend his or her protected rights; or
  • Assisting, testifying, or participating in any USERRA proceeding or investigation.

A USERRA lawyer or military attorney can assist you if you have a claim for retaliation.  Sometimes a USERRA lawyer or military attorney is able to resolve your issue outside of court, saving you money and achieving the desired outcome.  If you do need to progress to a lawsuit, working with an experienced USERRA lawyer or military attorney will give you the greatest chance at success.

Accommodations For Service-Related Disabilities

USERRA Lawyer - Pennsylvania Employment Lawyers 412-626-5626

USERRA Lawyer – Pennsylvania Employment Lawyers

Employers are required to make reasonable efforts under USERRA to accommodate returning service members who have incurred or aggravated preexisting disabilities during the course of their military duties. If an employee’s disability cannot be accommodated through reasonable efforts, the employer must reemploy the returning service member in a position that nearly approximates the position to which that person is entitled in terms of status, pay, and seniority.

A USERRA lawyer or military attorney can help draft reasonable accommodations and suggest them to your employer. If negotiations are needed, a USERRA lawyer or military attorney has experience working with employers. If you need to file a lawsuit against your employer, a USERRA lawyer or military attorney can make sure all procedural steps are met.

What Sort Of Damages Are Available?

If an employee covered under USERRA can prove that his or her employer violated one of the Act’s provisions, a USERRA lawyer or military attorney may be able to help him or her recover:

  • Lost wages and benefits;
  • Liquidated damages;
  • Reinstatement;
  • Attorney’s fees; and
  • Litigation expenses.

A USERRA lawyer or military attorney can make sure you are filing a claim for all applicable damages.  In most cases, if you fail to expressly request a certain kind of damage, you will not be awarded it.  That is why it is important to select an experienced USERRA lawyer or military attorney to assist you in your case.  A USERRA lawyer or military attorney will be able to compile the facts in a manner which justifies the damages requested.

The Pennsylvania Military Affairs Act

Much like USERRA, the Pennsylvania Military Affairs Act (“PMAA”) prohibits employers from discriminating against employees or prospective employees on account of their military obligations and/or from terminating and/or discharging any employee on account of or as a result of any such obligations.

PMAA states that it is the public policy of the Commonwealth of Pennsylvania that employees engaged in uniformed service shall not be subjected to employment discrimination on the basis of their participation in such services. As such, PMAA provides additional state law protections to these employees who are wrongfully terminated or refused employment on the basis of their uniformed service, including the right to sue employers in violation of PMAA for:

  • Punitive damages; and
  • Compensatory damages for emotional distress.

A USERRA lawyer or military attorney can help you navigate any issues which arise under the PMMA.

Proving Employer Discrimination

USERRA Lawyer - Pennsylvania Employment Lawyers 412-626-5626

USERRA Lawyer – Pennsylvania Employment Lawyers

Sometimes, there will be direct evidence of discrimination on the basis of military status. Such evidence can include:

  • Oral or written statements from an employer evidencing animus and discriminatory intent toward service members (i.e. “This employee’s performance is sub-par due to his/her numerous absences for active duty training);
  • An employer’s stated reasons, whether written or oral, for giving an employee a particular assignment or demotion (i.e. “We cannot offer you this position because we can’t afford to risk you leaving for Reserve duty”).

Make sure you preserve any direct evidence of discriminatory conduct.  This information is important to share with your USERRA lawyer or military attorney.

More frequently, however, an employee will be required to use circumstantial evidence. Discriminatory motivation under USERRA/ PMAA may be reasonably inferred from a variety of factors, including:

  • 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 the statute 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.

Employees do not need to prove that their uniformed service obligations were the sole reason for the adverse employment action(s); rather, they need only prove that such obligations were a motivating factor that led to the adverse action(s). A USERRA lawyer or military attorney can help you craft a strong argument based on the evidence you have.

How Long Does An Employee Have To Bring A Claim Under USERRA?

Unlike most other laws, there is no time limit for bringing a USERRA claim against an employer. No matter how long it has been since an employer’s USERRA violation, past, present or future service members can still contact a USERRA lawyer or military attorney to begin the process of vindicating their rights.

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. Our experienced employment military lawyers know how to combat employer discrimination and will fight to make sure your rights are protected.

Kraemer, Manes & Associates LLC “KM&A” is a law firm serving all of Pennsylvania with our principal offices in Pittsburgh and Philadelphia. Call KM&A in western Pennsylvania at 412-626-5626 or in eastern Pennsylvania at 610-616-5686. KM&A can be reached by email at lawyer@lawkm.com.

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