Employment Discrimination Against Veterans

The Boston, MA employment lawyers at THE LAW OFFICE OF ALAN H. CREDE, P.C. provide you with this brief overview of some of the legal protections for armed service members in the civilian workforce.

USERRA Claims

There are a variety of federal laws that prohibit employment discrimination against veterans. One of the most powerful legal protections is the Uniformed Services Employment and Reemployment Act - commonly known as "USERRA." Congress passed this law in 1994 to ensure that civilian employers do not unfairly discriminate against their service member employees on the basis of the service member's past, present, or future military service or status. The act also prohibits an employer from taking action against a service member employee for the employee's attempt to receive protection under the Act.

Generally speaking, the Act ensures that service members protected under the Act are entitled to be reemployed at their pre-service place of work at the same status, seniority, and rate of pay that they were entitled to before they temporarily departed for military service. The service member employee who is returning from service is also entitled to whatever benefits may have attended their status or seniority during their former period of employment.

The Act covers all employers in the U.S. - regardless of its size or location - and federal, state, and local government employers. It even covers foreign employers operating in the U.S. or U.S. territories. USERRA protects all members of the Armed Forces, the Army or Air National Guard, commissioned members of the corps of the Public Health Services, and such other members of services designated by the President during times of war or other national emergency. The law holds that employees who have served the nation should not have to return from their service and find that they have been demoted or that their job has been terminated entirely.

Nevertheless, every year employers wrongfully attempt to discriminate against employees based on the employees' military service or status. The Department of Labor's annual report on USERRA cases shows that about 1,500 cases per year on average are submitted for review since 2010. Of course, the number of potential USERRA violations is likely to be much higher because many cases go unreported and many cases are decided in court rather than in a federal administrative process.

There are several ways to assert a claim under USERRA. The first is for an individual to go to the Employer Support of the Guard and Reserve Ombudsman and attempt to file a complaint. The second mode would be to go and file a complaint at the Veterans' Employment Training and Service Office at the Department of Labor.

However, if an individual does not want to deal with a lengthy potential fight with government bureaucracy, he or she is entitled under the Act to hire an attorney who will take the case to court on their behalf in the Federal Court of whatever state they live in.

There are some restrictions on reemployment rights under USERRA and your attorney will be able to advise you fully on these points. Generally though, an employee seeking reinstatement after military service must have given notice of their intent to leave for a period of service (unless it was extremely unreasonable or impossible to do so). The employee's total term of absence also must not have exceeded five years. And, upon completion of their term of service, the employee must also have given immediate notice to their former employer of their intent to work. These conditions are satisfied by most service members seeking to return to work. However, even if those conditions are not met, there are often protections under USERRA. For instance, if an employee's service resulted in an injury that prevented the employee from returning to work immediately, this notification period may be longer. Your attorney will be best suited to fully inform you of your rights in more complicated scenarios.

The main goal of a USERRA claim is a judicial order to the employer to comply with the various requirements of USERRA. This can include, but is not limited to, reinstatement of employment at the employee's past level of status, seniority, and rate of pay, and a payment for lost wages or other benefits as a result of the employer's wrongful actions. If your attorney is able to show the court that the employer's violation of USERRA was willful and that the employer was a private sector employer, then you may be able to receive double damages. This means that an employer would have to pay twice the amount of compensation that an employee would otherwise be entitled to. Most successful USERRA cases will not actually go to trial and be resolved by a settlement and most of these settlement agreements will include a payment for attorney's fees, so it is also possible that your case could end up costing nothing to you.

If you are in the Massachusetts area and were a member of the armed forces or the reserves and feel that your situation entitles you to protection under the Act described above, you should not hesitate to contact an experienced attorney who can advise you of you rights and possible remedies for your situation.