A common problem in today’s society is the return of our military personnel from overseas wars and their return to their civilian employment positions. After risking their lives and possibly suffering debilitating injuries, they are often discriminated against due to the military leave or the employer will not make appropriate accommodations under Federal Laws such as the Americans with Disability Act (“ADA”) or the Family Medical Leave Act (“FMLA”). There are Federal Laws on the books that require employers to provide benefits to certain military veterans that other employers are not required to have.
Federal Law established the rights and responsibilities for uniform service members is the Uniform Services Employment and Reemployment Rights Act of 1994 (“USERRA”).
The USERRA is a Federal Law that was created to insure that persons who serve their country are not disadvantaged in their civilian careers because their service; are promptly reemployed to their civilian jobs upon return from duty; and are not discriminated against employment based on past, present, or future military service. The purpose of the law is to encourage the citizens of the United States to serve in the Military while enjoying the protection of the Federal Law so that the military staff by qualified individuals. There is a need to strike a balance between the needs of the private and public employers and these situations can vary from individual to individual. The USERRA is mostly codified at 38 U.S.C. §§4301-433. The law requires that the employee/military member must give notice to the employer but, although it is not required to be in writing, it is highly recommended that any such notice be placed in writing to minimize any proof problems should litigation or issues arise under USERRA. The notice may be given by the soldier or responsible officer from the soldier’s responsible officer.
The employee’s period of military service cannot exceed five years, which is cumulative. The employee must have been performing “service in the uniform services.” The employee’s service must have been under “honorable conditions.” In other words, the employee must have an honorable discharge.
The return to the employer must be timely. The employee must report back or apply for reemployment depending upon the length of service. It varies depending upon 30 days, 31 to 180 days to 181 days. It is possible to get extensions.
The USERRA requires prompt reinstatement among other basic entitlements. If the employee meets the reemployment prerequisites, the soldier is entitled to seven basic entitlements including prompt reinstatement; status; accrued seniority; health insurance coverage; training; retraining, or other accommodations as special protection for discharge. This does not allow a soldier to be immune from discharge; however, the discharge must be for cause.
There are many governmental programs available to assist military personnel in returning to their civilian status. In addition, there may be legal remedies available to the returning veteran including additional remedies under the ADA and FMLA. Remedies under Federal Law may require payment of back pay, liquidated damages in order of reinstatement.
If you or a family member have been unfairly treated due to his or her military service or disability or if the employer refuses to make accommodations or comply with the USERRA, contact Attorney Rolf Louis Patberg at the law firm of Patberg, Carmody, and Ging, P.C., 801 Vinial Street, Pittsburgh, Pennsylvania 15212. Contact can be made by phone or email at (412) 232-3500 or (800) 471-6880 or by email at firstname.lastname@example.org. Offices in Downtown Pittsburgh, Murraysville, Bridgeville, and Franklin Park.