If you’re a member of the Armed Forces and you are called up for military duty or are considering military service, you might be wondering about your employment rights, specifically whether you can get fired for taking military leave. The short answer is no, you cannot be fired for fulfilling your military duty or taking a military leave of absence. However, the details of your rights and protections depend on various factors, including the laws that govern your situation.
In this article, we will delve into your rights as a service member and help you understand the legal framework surrounding military leave and employment. Whether you’re in the National Guard, the reserves, or on active duty, this information will empower you to make informed decisions about your career and military service.
Understanding the Legal Protections of USERRA RIGHTS
The primary federal law that protects service members’ employment rights is the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA is designed to ensure that those who serve in the uniformed services are not disadvantaged in their civilian careers because of their military duty.
Under USERRA, employers are prohibited from terminating or discriminating against employees based on their military service. This applies to both public and private employers. In other words, your employer cannot fire you, demote you, or take any adverse employment actions because of your military service or your past or present membership of a military branch.
Your USERRA Rights
Here are some key provisions and rights that USERRA provides for service members:
Reemployment Rights:
If you leave your civilian job for the armed forces duty, you have the right to be reemployed upon your return from military duty. To qualify, you must have given your employer advance notice, or in some cases, return in a timely manner. Your military service must not have exceeded five years.
Health Insurance Coverage:
While on leave to perform military duty, your employer must continue your health insurance coverage. If your military service lasts less than 31 days, your employer cannot require you to pay more than your regular employee contributions for health insurance. For longer periods of military service, you may be required to pay up to 102% of the full premium.
Seniority Status and Pay:
USERRA ensures that you are reemployed with the same seniority, status, and pay you would have had if you had remained continuously employed. Your employer is required to make reasonable efforts to help you update your skills and qualifications to match your civilian job.
National Emergency:
In case of a national emergency, the five-year limit on your military service may be extended. This allows you to serve your country without worrying about losing your civilian job.
Operational Missions:
Whether your military service is on a voluntary or involuntary basis, USERRA still protects your employment rights. This includes active duty service, inactive duty training, and any other military duties.
National Guard and Reserve Members:
If you’re a member of the National Guard or reserves, your employer must provide you with unpaid leave for military service. Your position and benefits should be maintained as if you were continuously employed. However, certain conditions may apply in each case.
Returning to Your Civilian Job
When returning from military leave, USERRA requires that your employer make efforts to reemploy you in your civilian job or a comparable position. If you are unable to perform the job due to a disability incurred during military service, your employer must make reasonable accommodations unless it creates an undue hardship.
Furthermore, USERRA states that if you meet the eligibility criteria, your employer must reemploy you without a break in service, as though you never left. This means you return to your civilian job with the same benefits and opportunities for advancement.
It is essential to provide your employer with satisfactory documentation regarding your military services, such as military orders and discharge papers. This helps ensure a smooth transition back to your civilian job.
What to Do if Your USERRA Rights Are Violated
If you believe your rights under USERRA have been violated, it’s crucial to seek legal advice. Many experienced attorneys specialize in employment and military law. They can help you navigate the legal process and protect your rights as a service member.
Under USERRA, you may be entitled to various remedies, including:
Reemployment: You may have the right to be reinstated in your previous position or a similar one, with all the rights and benefits you would have had if you hadn’t taken military leave.
Back Pay: If your employer has denied you pay raises or bonuses you would have received if not for your military service, you could be entitled to back pay.
Attorney Fees: USERRA allows for the recovery of attorney fees if your case is successful.
Expert Witness Fees: If you need to call upon expert witnesses to support your case, you might be able to recover these fees as well.
Other Damages: Depending on the circumstances, you may be entitled to additional compensation for the damages you suffered due to the violation of your employment rights.
Hire BLG to Seek a Fair Compensation
In conclusion, you cannot be fired for military leave, thanks to the protections afforded by the Uniformed Services Employment and Reemployment Rights Act (USERRA). This federal law ensures that service members, whether in the National Guard, reserves, or on active duty, have their civilian employment rights safeguarded during their military service.
If you encounter any issues related to your employment rights as a military member, it’s essential to consult an attorney experienced in military employment law. They can help you navigate the legal process and ensure that your rights are protected.
Service in the uniformed services should never jeopardize your civilian job or your ability to serve your country. By understanding your rights and seeking the appropriate legal guidance when necessary, you can balance your military duties and your civilian career without fear of adverse employment actions. Your dedication to your service should be celebrated, not punished, and the law requires employers to uphold these principles.
Hire BLG, a renowned law firm, to help you seek justice. Our qualified employment lawyers are devoted to helping you at every step with their guidance and insights.
Book a free consultation appointment today!
USERRA RIGHTS Frequently Asked Questions
Can you get fired for being on Military Orders?
If your orders are less than 5 years, the answer is NO. This is a USERRA violation and you should contact an attorney to start your claim process.
Can you get fired for having to deploy?
No, Again if this is a part of your voluntary or involuntary military service it would be a violation of your employer to terminate you under USERRA.
Can you get fired for annual guard or reserve military training?
Annual training is the 2 weeks active duty a year that guardsmen and reservists are required to do. You cannot be fired for this, such an action by the employer would be a USERRA violation.
Can you be refused employment because you are in the military?
No, An employer cannot discriminate against your military status under USERRA. This includes employment discrimination against a person on the basis of past military service, current military obligations, or intent to serve.
What is the burden of proof for USERRA?
The employer bears the burden of proving that it would have taken adverse action against the employer in the absence of the service connection.
Can my employer deny my military leave request?
An employee must be granted, upon request, military leave to which they are entitled for performance of active duty or active duty for training.
What damages can I claim under USERRA?
The law provides make-whole relief, including lost wages, restoration of pension benefits, employment or reemployment with the employer, and injunctive relief.
More can be found at the Department of Labor USERRA Fact Sheets Below which cover USERRA Rights.
1-800-870-8910