With many active uniformed officers returning to the United States and
hoping to return to their previous employment, many military personnel
wonder about their rights to reemployment when returning from serving
in the military.
Fortunately, federal anti-discrimination law protects armed service members.
Called the Uniformed Services Employment and Reemployment Rights Act (USERRA),
USERRA provides that most military personnel must be returned to their
jobs when returning from serving in the military, and it also prohibits
discrimination based on an employee’s military service.
The USERRA defines the term “Uniformed Services” broadly, and
applies to members of the Army, Navy, Air Force, Marines, Coast Guard,
and Public Health Service commissioned corps, as well as reservists in
each of each of these branches. Whether a returning service member is
entitled to protection depends on each case, but generally requires that
the individual meet the following five circumstances:
1. That he was in a civilian job;
2. That he gave notice that he was leaving the job to performed uniformed service;
3. That the period of service was five years or less;
4. The service member did not receive a dishonorable discharge; and
5. The service member reported back for work in a timely fashion.
If you have questions concerning the USERRA or your rights to return to
your previous employment it is important to discuss these with a knowledgeable
Atlanta uniformed services reemployment lawyer.
Whether your job is covered by USERRA may be complex. However, an experienced
reemployment lawyer can provide you critical guidance. Recent case has
determined that the USERRA applies to state agencies. In
United States v. Alabama Dep’t of Mental Health & Mental Retardation, 11th Cir., No. 10-15976, 3/16/12), the11th Circuit Court of Appeals determined
that an Alabama National Guard member, Roy Hamilton, who was deployed
to Iraq, could sue an Alabama state mental health agency that had employed
him. When Hamilton was honorably discharged in 2005, he sought reemployment
with ADMH, but the agency failed to contact him. The ADMH objected, arguing
that they were immune from the federal lawsuit. The court of appeals disagreement,
explaining USERRA “gives the federal government-and not individuals-the
right to sue states in federal court to enforce federal law.” Further,
even though the U.S. government brings USERRA actions on behalf of private
individuals, because the Federal Government has a significant interest
in encouraging service in the armed service, these lawsuits are not considered
“private actions masquerading in costume” that would violate
state’s sovereign immunity.
As a result, the court determined that the ADMH violated Hamilton’s
rights when it failed to offer him reemployment.
For more information about USERRA, or if you believe your rights to reemployment
have been violated, please
contact the dedicated Georgia reemployment lawyers at Buckley Beal LLP for an immediate consultation.