There are several military bases in South Carolina, from Fort Jackson in the north to Parris Island near Georgia. As such, it is not uncommon to see discharged military service members living and working in the state, as well as those who remain reservists. However, some employers may not exercise impartiality in hiring discharged service members and reservists, for a variety of reasons. Though it is not well known to many, there are antidiscrimination laws protecting military service members from discrimination in civilian employment. In this article, we’ll cover USERRA rights and regulations for civilian work.
What Does USERRA Protect Against?
The Uniformed Services Employment and Reemployment Rights Act (USERRA), passed in 1994, grants protections to current and former military personnel against discrimination in employment. Essentially, it is intended to ensure that service members are not disadvantaged in hiring—especially not in rejoining their civilian careers after a tour of duty. It is more common than one might think that employees who are called to active military duty are somewhat left behind when they return. Perhaps their employer has made changes to the corporate culture or the specifics of how their job is performed. They may be disinclined to bring the person up to speed.
Alternatively, an employee simply may not be offered their old job back upon the conclusion of their tour of duty. This is not permitted under USERRA. The distinction is fine, but important. A discharged service member does not necessarily have to be granted their job back without any kind of reapplication, depending on the field, but they must be permitted to reapply for it. The law requires that civilian employers must grant reasonable time off for training and fulfillment of such obligations. If this is not given, a cause of action may be brought.
Handling USERRA Rights Complaints
One might think that USERRA is a rarely used law, but in a state like South Carolina with a significant population of service members, it gets used more than one might think. Department of Labor statistics show that of the USERRA claims filed in the most recent available year of data, over half dealt with either improper reinstatement into civilian jobs or alleged discrimination in rehiring or retainment. One might wonder why anyone would discriminate against service members, but animus is seldom rational, and claims regarding everything from alleged propensity for violence to a distaste for the idea of war have been brought.
The key issue in determining whether someone has a cause of action under USERRA regulations is in examining an employer’s stated reasons for their actions. The language of the Act states that an employer’s conduct may be seen as “problematic” if the employee’s enlistment or obligation to serve is the “motivating factor” in the action in question. The burden of proof essentially lies with the employer, which is somewhat unusual. In order to overcome the presumption of improper conduct, the employer must show that the same action would have been taken with or without the employee’s military status.
Ask An Experienced Attorney
Military service members should not be rewarded, after hazardous tours of duty, with mistreatment and discrimination from civilian employers. If you are in such a situation, it is a good idea to talk to an employment discrimination attorney right away. The knowledgeable firm of Hitchcock & Potts is happy to listen to your questions and help determine what needs to be done.
Contact us today to set up an initial consultation.