While American troops are overseas, fighting for their country, many people back home have "Support Our Troops" bumper stickers, hang yellow ribbons, and pray for their safe return. But once veterans return stateside, many find their employers aren't jumping up and down to have them come back to work. Veterans often suffer discrimination in the workplace.
1. An employer says the job is no longer available.
Many employers don't realize that returning veterans have an absolute right to have their jobs restored when they return from active duty. The Uniformed Services Employment and Reemployment Rights Act protects returning veterans from job loss due to their military service. Not only does USERRA require that your job be restored if you've been on active service five years or less with that employer, but you are entitled to be restored to the job and benefits that you would have attained had you not been absent.
For instance, if it is reasonably certain you would have been promoted due to seniority, but were on active duty when the promotion was made, you may be entitled to that promotion even if someone else is in the position when you return. Your employer must offer training that will get you qualified for that higher position, if necessary. If you need to take a test for the promotion, the employer should allow you to take the test when you return.
2. The employer doesn't want to hire veterans.
Some military members find that employers don't want to hire them. National Guard members in particular find that employers fear they will be called up and miss work, so won't hire them, no matter how qualified. USERRA says employers can't refuse to hire military service people just because of their military service.
3. The employer takes away accrued vacation time.
USERRA says employers can't deny any "benefit of employment" due to military service. USERRA's protection of benefits of employment includes any "advantage, profit, privilege, gain, status, account or interest." If you would have accrued vacation while you were in active service, you are entitled to that vacation as if you had been there. If it is reasonably certain that you would have obtained a pay raise during your military leave, you are entitled to that pay raise upon your return. If pay raises are based on merit and seniority, then you are at least entitled to the seniority part of the raise, as if you had been there. For pension, you must be treated as if you were continuously employed. While you're on leave, you can elect to continue your health care coverage for yourself and your dependents for up to 24 months. Even if you didn't elect continued coverage, you're entitled to coverage upon your return.
4. Co-workers or bosses harass the veteran.
Sometimes, co-workers or supervisors harass returning service members due to their military service. It used to be that USERRA didn't protect against harassment, but when President Obama signed the Veterans Opportunity to Work (VOW) to Hire Heroes Act of 2011, the loophole allowing harassment was fixed. Harassment of service members or former service members due to their military service is now illegal.
5. An employer won't hire a veteran due to his or her disability.
Unfortunately, many returning veterans come home with a service-related disability. The Americans With Disabilities Act makes discrimination based upon a disability illegal. Refusing to hire a veteran, firing a veteran, harassing or demoting a veteran due to a disability is illegal. If a veteran can perform all the duties of the job with a reasonable accommodation, the accommodation must be provided. If, for instance, the veteran suffered a vision loss but can perform their job duties using a CCTV, the employer must provide that CCTV unless the employer can demonstrate that it will cause an undue hardship.
6. The boss won't give the veteran time off for a medical condition.
If you need up to 26 weeks of continuous or intermittent leave for a serious medical condition that was incurred on active duty, you are covered by the Family and Medical Leave Act when: You worked 1,250 hours during the 12 months before the start of leave (or if you were in the National Guard or Reserve and, but for your service, would have worked 1,250 hours before the start of your leave); you work at a location that has 50 or more employees working within 75 miles of it; and you worked for the employer for 12 months, including the time you were absent. The 12 months don't have to be consecutive. If you were gone less than seven years, you can count your prior work with the employer. If your break in service was due to military service or covered by an agreement -- such as a union agreement -- then it can be longer than seven years ago.
7. The employer refuses to to give time off to care for a family member.
Some returning veterans need ongoing medical care. The Family and Medical Leave Act provides caregiver leave for families of injured or ill military members, including spouse, child, parent and next of kin. Family members of covered service members (spouse, child or parent) can take up to 26 weeks of leave in a 12-month period. If your family member is in the National Guard, up to 12 weeks of this leave can also be used to deal with any exigency that arises due to their deployment, such as arranging child care, making financial and legal arrangements, attending military ceremonies, spending time with the family member on leave, and post-deployment activities. The leave can be intermittent, meaning that it doesn't need to be taken all at once, or can be taken all at once.
What To Do If Your Employer Breaks The Law
If your employer violates USERRA, you may file a claim with the Department of Labor or you may file a suit using your own attorney. Your possible remedies include reinstatement to your job, back pay, lost benefits, corrected personnel files, lost promotional opportunities, retroactive seniority, pension adjustments, restored vacation, attorney's fees, costs, and possible liquidated damages for a willful violation. There is no statute of limitations under USERRA, but the courts still may penalize you if you delay unreasonably. I'd suggest bringing your claim as soon as possible.
If your employer violates the Family and Medical Leave Act, you may file a complaint with the Department of Labor or may file a suit using your own attorney. Your possible remedies include lost wages, lost benefits, actual monetary losses, attorney's fees, costs, and possible liquidated damages for a willful violation. You have two years from the date of the violation to sue (3 years for a willful violation, but don't wait).
If your employer violates the Americans With Disabilities Act, you must file a Charge of Discrimination with EEOC within 180 days of the discrimination, unless there is a state or local law that also provides relief for discrimination on the basis of disability. In those cases, you have 300 days to file a charge. Once EEOC issues the right to sue, you'll have 90 days to file suit. Remedies include hiring, promotion, reinstatement, back pay, ordering reasonable accommodations, attorneys fees and costs.
You may also have remedies under your state law and local ordinances, so it's not a bad idea to talk to an employee-side employment attorney in your state if you believe your rights were violated.
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