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Military Servicemember Employment Rights: Do You Know Them?

Posted by Kira Fonteneau | Feb 01, 2017 | 0 Comments

For those serving in the Armed Forces, change is just part of life. Military Service member Employment Rights: Do You Know Them? Whether it is preparing for deployment or packing for yet another cross-country move with your family, being in the military means being ready for anything. What about reservists and members of the National Guard? Well, just like active duty, reservists and Guard members must be prepared to leave at a moment's notice. Civilian employers, therefore, have strict requirements on how to handle deployments and activations. If you serve in the Reserves or the Guard, it is important that you know your rights and know how to fight for them, if necessary.

You can Not be Fired for Serving

Under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), a service member may not be terminated for serving. Obviously, Guard and Reserve members will have to miss work for regular drills, training missions, and deployments. USERRA says that an employer must protect the service member's right to reemployment, so long as the member does not miss more than a total of five years of work. This is cumulative. So, over the course of 20 years with a company, the service member can be absent up to five years and still maintain the right to re-employment.

Exceptions to Re-Employment Rules

Five years sounds like a long time, but when you consider that the average cumulative time spent deployed for members of all branches, according to one study, was almost 17 months. Many National Guard members have found themselves on multiple deployments, lasting more than a year each. So, as you can imagine, time adds up quickly. But there is good news. Things like periodic training and activation for natural disasters or other national emergencies do not count toward this limit.

Climbing the Corporate ‘Escalator'

USERRA provides that your employer must allow you to continue moving up the corporate ladder, so to speak. In other words, if your company has a standard employment path that would allow you to compete for a promotion after seven years, but you have been absent for two years due to National Guard service, you must still be permitted the same opportunities for advancement as though you had not been absent. The law does not require your employer to give handouts or ignore merit or ability, but it just says that you have to be afforded the same opportunities and advancements you would have received, but for your service. This is often called the ‘escalator' principle. 

Veterans are Covered in Some Situations

If a former member of the military does have to leave civilian employment due to military obligations, there are possible options for government-supported retraining and other employment services through Veterans Employment and Training Services (“VETS”). There are many federal and state programs designed to help transitioning servicemembers re-enter the civilian workforce.

Getting Answers to Military and Veteran Questions

For more than 20 years, the attorneys of Fonteneau & Arnold, LLC have been fighting for the rights of others. If you have been the victim of discrimination or an employer who does not respect your service, let our attorneys put their combined experienced to work for you. Call (205) 252-1550 or visit us online to get help today.

Religious Discrimination 58 Years After JFK

Almost 60 years ago, John F. Kennedy met with leaders of the Greater Houston Ministerial Association to deliver a speech, defending his religious faith as a Catholic. For Alabama workers, however, the law is fairly clear. An employer must not discriminate in hiring, promotion, advancement, or other benefits of employment based on an employee's religion.

Lessons from Kennedy's Speech

In his September 12, 1960, speech before some of the leading protestant ministers in Texas, Kennedy spoke clearly about the folly of focusing on the differences between religion when so much more can be accomplished by focusing on individual merits. As the first Catholic to ever be elected President of the United States, Kennedy knew that people, especially in southern states, were concerned that he would take his orders from the Vatican rather than from the voters.

Military Servicemember Employment Rights: Do You Know Them?

It is unfortunate that for the highest job in American government, an individual would feel the need to speak about (let alone defend) his religion. Nevertheless, questions of religious devotion are often improperly made part of the hiring process. Federal law provides significant protections for employees of all faiths.

Religion Must Not be a Basis for Hiring

Under Title VII of the Civil Rights Act of 1964, it is unlawful for an employer to “fail or refuse to hire” a person based on religious faith or affiliation. The Equal Employment Opportunity Commission (EEOC) provides a method by which an aggrieved prospective employee can bring a complaint for violations of these rules. So, under the Civil Rights Act (which was not in effect until 1964), had Kennedy been applying for a typical job, he would have been a victim of religious discrimination.

Of course, this is just theoretical because the Civil Rights Act did not exist in 1960, and it expressly excludes elected officials. After all, it would be impossible to impose such rules on the free and private democratic election process. Nevertheless, if we consider the progress our nation has made since 1960, American workers should never feel as though they must explain or defend their faith in order to secure a job.

Religion Must Not be a Basis for Promotion or Pay

It is not just getting the job that counts. The Civil Rights Act also makes it unlawful to refuse a promotion based on religious faith. Attorneys who routinely handle discrimination lawsuits know that the hard part is not figuring out that religion played a role in a hiring or promotion decision, but rather, the challenge is proving it. Employers often fabricate excuses and rationalizations for their decisions, using non-discriminatory factors instead. Many times, these are merely pretexts for discrimination.

While the EEOC provides numerous examples of pretextual evidence for everything from discrimination to retaliatory discharge, nothing compares to discussing the unique facts of your case with an experienced employment lawyer.

Birmingham Employment Lawyers

Attorneys Kira Fonteneau and Allen Arnold have over 20 years of combined experience fighting for clients who have been hurt by wrongful discharges or discrimination. If you have been fired or refused a job because of your race, religion, or any other protected status, do not expect your employer to do the right thing. Hire an attorney who understands the law and knows what it takes to get justice. Call or visit us online to speak with us today.

About the Author

Kira Fonteneau

Partner and Managing Attorney of the Alabama Trial Practice Group at Barrett & Farahany Kira Fonteneau is a partner and the managing attorney of the Alabama trial group of Barrett & Farahany. Kira chose to specialize in employment law because she wanted to help employees take back power. ...

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