Military Status Discrimination
Curt Masker is a Nashville USERRA attorney who represents military members in legal actions against employers who violate federal and Tennessee law. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a federal law that protects civilian job rights and benefits for U.S. military members including Reserve components.
USERRA provides a comprehensive remedial scheme to guarantee the employment and reemployment rights of servicemembers called upon to serve in the U.S. armed forces. As such, USERRA is broadly construed in favor of servicemembers. No employer can refuse to provide any right or benefit guaranteed by USERRA, and it supersedes any contract, agreement, policy, plan, practice, or other matter that tries to reduce or limit any right or benefit it provides. 20 C.F.R. § 1002.7(a).
What Are USERRA’s Key Functions? USERRA performs four primary functions:
- Guarantees returning veterans the right of reemployment after military service. 38 U.S.C. § 4312.
- Proscribes the position to which veterans are entitled upon their return. 38 U.S.C. §4313.
- Prohibits discrimination against servicemembers on account of their service. 38 U.S.C. § 4311.
- Prevents employers from firing without cause any returning veterans within one year of reemployment. 38 U.S.C. § 4316.
Common examples of USERRA violations include:
- Failing to reemploy a servicemember into the promotion he or she would have attained but for the military service
- Filling a servicemember’s position and refusing to reemploy him or her into their former position
- Refusing to hire a servicemember after learning of an upcoming period of active duty
- Retaliating against a servicemember after he or she asserts USERRA rights
USERRA’s “escalator principle” is a key requirement under the law that requires servicemembers to be reemployed in the job they would have attained had they not been called to serve. This includes the same seniority, status, and pay, as well as other rights and benefits determined by seniority. 38 U.S.C. § 4311(a). Thus, if a servicemember is next in line for promotion before deploying, he or she must be reemployed into the promotion upon return from protected leave.Can My Employer Retaliate Against Me For Taking Military Leave?
Absolutely not. Employers are prohibited from retaliating against any person for asserting his or her rights under USERRA. 38 U.S.C. § 4311(b). Nashville USERRA lawyer Curt Masker has experience asserting legal rights under USERRA including creating favorable caselaw for servicemembers.Does USERRA Apply to Temporary Workers?
USERRA’s legal rights may protect temporary, part-time, probationary, and seasonal employees if the employment would have continued indefinitely or for a significant period of time. But an employer is not required to reemploy an employee if the employment the servicemember left was for a brief, nonrecurrent period and there is no reasonable expectation that the employment would have continued for a significant period. Importantly, the employer bears the burden of proving this affirmative defense.
For example, football coaches and lifeguards may have a reasonable expectation of continued employment under USERRA because the positions are recurrent each football/swim season. In other words, being hired into a job with no limitations on the term of employment (even if seasonal) may fall within USERRA’s protections. Slusher v. Shelbyville Hosp. Corp., No. 4:12-cv-60, 2015 U.S. Dist. LEXIS 156084, at *23-26 (E.D. Tenn. Feb. 18, 2015) (citing United States v. Nevada, 817 F. Supp. 2d 1230 (D. Nev. 2011)).Am I Allowed To Keep My Existing Health Insurance Under USERRA?
Yes. If you leave your job to perform military service, you can elect to continue your existing employer-sponsored health insurance coverage for you and your dependents for up to 24 months while in the military.How Much Is a USERRA Case Worth?
Servicemembers whose legal rights under USERRA are violated can recover lost wages and benefits, plus, in cases where the employer’s conduct shows a willful or reckless disregard for the law, an equal amount in liquidated damages. In addition, if you go to trial and win you may be awarded reasonable attorney’s fees, expert witness fees, and other litigation expenses (totaling well into six figures). As an example, let’s say you lost $20,000 in wages and benefits and your employer’s actions are “willful.” In this case, you would be entitled to $40,000 in damages, plus attorney’s fees and expenses.Know Your Legal Options - Call Today
Nashville-based USERRA attorney Curt Masker proudly represents servicemembers in employment legal disputes. Curt offers comprehensive litigation services and exceptional client service. Contact Curt today for your Free Attorney Consultation at the number above or online.