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TURNING EMPLOYER WRONGS INTO EMPLOYEE RIGHTS

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California Employees Returning from Military Service have Protection

With thousands of armed forces members returning from active duty in Afghanistan and Iraq, rejoining their former employers has not been easy. California’s Military & Veteran’s Code Section 389, et seq, protects former employees seeking to return to their jobs. In some cases the California law provides more benefits that the federal USERRA (Federal Uniformed Services Employment and Reemployment Rights Act). law. Where the state law is more liberal, those provisions actually supplement the federal law. In both cases, employers of all sizes are covered; there is no minimum number of employees. The USERRA guarantees returns vets a right of reemployment; prescribes the position to which such veterans are entitled upon return; prevents employers from discrimination against returning veterans and prevents employers from firing without cause any returns vet within one one year of reemployment.

Employers must grant leave for a total of up to five years of service. In order to have a guaranteed job on completion of the military assignment, the employee must have provided proper advance notice of the employee’s military service.

There are exceptions to re=employment rights, such as a finding that it is impossible or unreasonable due to the employer’s changed circumstances (ie, reductions in force); the employee has a disability or is not qualified for a position after the leave and reemployment would pose an undue hardship on the emloyer; or the employee was hired before leaving for military service for a brief, nonrecurring period with no reasonable expectation that employment would continue for a significant period or recur in the future. Also, the member must not leave the service with an honorable discharge, or at least not have suffered a disqualifying discharged. The Department of Defense strongly advises 30 day’s advance notice to your employer of the ending of service, where practicable of course.

Reemployment must occur promptly after the employer is made aware of the returning member’s need for work. Two weeks is considered the outside time period in which to start work.  Your employer may not refuse to re-employ you on the basis that someone else was hired to fill the job during your absence in the military, even if reemployment might require termination of the replacement employee.

A returning vet is entitled to resume work in the job in which he or she would have been had they not left for service. That means if a transfer or promotion would have taken place, it must be given on return. This is sometimes referred to as “escalator protection.” Once back at work, you are protected against discharge at least temporarily. If you were gone more than 30 days you may be discharged only for “cause” for a period of time following your reinstatement. This time varies from 180 days to one year). Termination may not be motivated, even in party, by an employee’s veteran status. Employers must make reasonable accommodations for employees with service-connect disabilities. If accommodations can’t be made for the same job, then the employer must be given a position of equivalent seniority status and pay for which they are qualified or could become qualified to hold.

Veterans are generally treated as being on an unpaid leave of absence while out on duty. Employees may elect to use accured vacation time, annual leave or personal time in lieu of unpaid leave for all or a portion of the absence. Employees are not required to use vacation time while on military service. If it is necessary to apply for unemployment benefits, military time counts in calculating such benefits. You may elect also to continue health benefits coverage at your expense. Pension benefits run continuously through the leave period. While out on military leave, the time is including in determining FMLA (Family Medical Leave Act) eligibility.

While the word “retaliation” is not used in USERRA, the intent of Section 4311 is to prohibit adverse employment action in retaliation for the exercise of military leave. The employee must show that taking of the protected leave was the motivating factor in the adverse action. However, a slight change in the mix of an employee’s duties and hours upon return was not considered an adverse employment action in a recent 4th circuit case. When a supervisor’s written reprimand was motivated by anti military bias and intended to cause an adverse action, that would be a violation of the law. Wrongful termination in violation of public policy may be asserted by a member treated unfairly under this law.

Covered members are those serving in the military or naval forces of the US, the California National Guard or a reserve corps. If the employer has 25 or more employees, the spouse of a person in military service is entitled to 10 days of unpaid leave while the soldier-souse is on leave from deployment.  Additionally, the Family Medical Leave Act gives up to 12 weeks of leave to an employee who is a family member of a person in military servicing during the time of hostilities if it is a qualify exigency. Alternatively, up to 26 weeks to care for a  service member during rehabilitation may be given.

There shall be no discrimination against a member of the military or naval forces of California or the US. And, the employer may not discharge such a person because of the performance of any duty or training by virtue of the persons’s membership in the armed forced. Violation can subject the employer to economic, non economic damages and attorney fees. It is also a misdemeanor to discharge, discipline or prejudice a military member because of his/her service.

If you find yourself not getting reemployment, consider filing a complaint with the Department of Labor, which will investigate and seek to resolve the matter. You may also contact the US Attorney General who may file an action on your behalf. In many cases, it is best to file a private lawsuit under 38 USC Section 4323(a)(3).  There is no requirement that a claim be filed prior to the lawsuit. Your attorney will file your lawsuit in federal court unless the action is against a state governmental employer. There is no express statute of limitations (time period) in which to sue under USERRA. However, if you wait too long, the court may dismiss your case based on “laches”, which simply means you waited too long and fundamental fairness dictates dismissal of the case.

Understanding all of your veteran’s employment rights and not suffering discrimination because of your service is a complicated area of law with differences in state and federal laws. Please consult an attorney in your jurisdiction with expertise in this area. We practice in California’s state and federal courts. Steve Danz