As the war goes on and employers wary of seeing their Guard and Reserve members leave every three to four years for deployment (not counting training times and weekend drills), violations of upholding USERRA are bound to occur.
Matthew Tully, the attorney and National Guard major I mentioned in my last post, told me there is really no number one violation he can point to; though most firings end up in the news, these aren’t that common and usually result because of a manager’s not thinking – firing someone for being five minutes late two weeks after getting an outstanding evaluation and a big bonus and a week after they were notified the employee was going to Afghanistan.
“Where it gets difficult is in a small operation,” said Tully, “where it’s an auto shop or a business like that and only one person really knows. At deposition, the employer just lies. It gets tougher.”
Where Tully is seeing a lot of violations is through lateral moves. “We see this in the police department,” he told me. “Someone takes over a Guard member’s spot, he comes back and now they are on the midnight shift instead of the day shift like they were. USERRA protects you.”
Or maybe you’re a white-collar worker, someone in the banking industry or on wall street. “They used to have corner offices, a secretary. Now they’re in a cubicle. Technically, they are making the same amount of money but there’s a status symbol there that they’ve lost.”
Tully said that often, all it takes is a letter from his office for the situation to be corrected.
“The other big issue is pension credits – USERRA laws take precedence on this issue. Most employers don’t give any pay when the employee leaves but when he comes back, he’s allowed to make that contribution; the employer’s required to make that contribution for the time while he’s away.”
Strengthening USERRA
Tully said there is currently a piece of legislation called The Service Members Right to Justice Act that was recently introduced by Congressman Artur Davis from Alabama that will dramatically strengthen USERRA and also give tax credits to businesses.
“If a business makes up the salary difference that an employee may lose if he or she deploys, they will receive a new tax incentive of $5,000 tax credit for every reservist/national guardsman an employer hires. Almost all future legislation will be tied to a tax credit. USERRA is unfair to small business owners,” said Tully.
Working with employers
The responsibility cannot only be on the employer to ensure the employer-service member relationship goes smoothly.
It’s critical that Guard and Reserve members keep good communication with their bosses. This means giving them adequate notice when a reservist is going to be away and also not taking advantage of the system. I read somewhere recently where a reservist came home from a deployment, stayed home for two months and then contacted his former employer ready to come back to work. It doesn’t work that way and at that point, the employer had no federal obligation to allow him to come back.
In such a hard economic climate, Guard and Reserve families must know their rights and must be willing to fight for their rights if it comes to that. Check out these frequently asked questions to help you become more familiar with USERRA.
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You wrote: “I read somewhere recently where a reservist came home from a
deployment, stayed home for two months and then contacted his former
employer ready to come back to work. It doesn’t work that way and at
that point, the employer had no federal obligation to allow him to come
back.”Actually, in most cases, the military member has 90 days from the last day of active duty to notify the employer. Basic courtesy suggests that if you know you’re going to take some time off after deployment, you should let your employer know, but the law protects you if you take that time, whether you spell that out for your employer or not.