Military service discrimination in employment is illegal. The United States Government employs approximately 2.5 million people in active and reserve duty capacities. Each of these individuals faces many challenges inherent with such a chosen career path, including family obligations, work obligations, and long- or short-term deployments. Many, if not all, military reservists have full-time civilian jobs, but they still have to make allowances for military obligations and training, which often causes the employee to miss time at work. What happens, however, if these absences cause complications for your employer in trying to cover your job duties when you are absent? Can your employer fire you or refuse to let you come back because it doesn’t want to deal with the difficulties of your military service? The answer is no, the employer CANNOT take adverse employment action against you because you are a member of the military, thanks to a federal law called the Uniformed Services Employment and Reemployment Rights Act, or USERRA for short.
What Law(s) Protections Against Military Service Discrimination in Employment?
The employment and re-employment rights of military service members are protected by USERRA. This act guarantees leaves of absence for training, provides the right to reemployment after active duty, and prohibits discrimination based on an employee’s military status. This means that your employer must allow you time off to complete your training, must allow you to resume your job after returning from active duty (if you reapply within the deadline), and must not use your status as a military service member as a basis for discriminating against you.
What Discrimination is Prohibited?
An employer is prohibited from discriminating against an employee because of that employee’s military service in the armed services. If an employee’s status as a member of the military or military obligations is the employer’s “motivating factor” in deciding whether to hire, fire, or promote that employee, then that employer has violated USERRA. In essence, if the employer’s reason for making an employment decision was based on the employee’s military service, then the employer has discriminated against the employee. Practically speaking, it’s difficult to prove that the employer was discriminating on the basis of military service (unless the employer bluntly admits that you’re being fired due to your military service), so plaintiffs often have to rely on other facts, such as the employer’s negative comments about the employee’s military service, or the employer treating a non-military employee differently than an employee who does serve in the military.
If You Bring a Lawsuit for a Violation of USERRA, What Are Your Remedies?
If an employee prevails in a USERRA case, he or she can recover back pay, front pay, lost benefits, litigation costs, and reasonable attorneys’ fees. Further, if the court determines that the violation was willful, then the employee is entitled to “liquidated damages,” which are double the amount of lost wages. The court can also order the employer to comply with USERRA, i.e., reemploy the plaintiff. An experienced employment lawyer will advise you on all of these issues.
Military Leave in South Carolina
South Carolina has a state-specific statute that provides for military leave for state officials and state employees, as well as reemployment rights for National or State Guard members. To qualify for reemployment, the employee must apply for reemployment within 5 days from release of duty, and if such reemployment is reasonable under the circumstances, the employer must reemploy the employee.
Every person’s story is different, and individual facts can matter greatly in a USERRA lawsuit. If you believe that you have been discriminated against by your employer on the basis of your military service or military status, including denial of promotions or benefits or denial of initial employment or reemployment, contact our office today for a consultation.