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Military

Unique Employee Rights and Protections for Military Personnel

September 1, 20155 minute read
As a former or active member of the United States military, National Guard, or Reserves, have you ever been asked during a job interview whether you suffered from post-traumatic stress disorder (PTSD)? After completing a military tour, were you not given your predeployment civilian job back? Or do you believe your time in the uniformed armed services has placed you at a disadvantage when applying for civilian jobs? Several federal laws aim to prevent an affirmative answer to any of the above questions. However, if you’ve answered yes to any of those questions, please read on to learn about whether you can take advantage of or are protected by either of the following two federal laws that are exclusive to members of the armed forces.

USERRA

soldier3We’ve largely written about workplace discrimination and other workplace issues for those who are not or have never been a part of the uniformed armed services of the United States. Law such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, the Age Discrimination in Employment Act, and the Family and Medical Leave Act of 1993 apply to all employees, regardless of military status or work history. But there is also a federal law for military personnel that provides similar protections against discrimination unique to veterans. The Uniformed Employment and Reemployment Rights Act of 1994 (USERRA) is designed to protect those who have served in the armed forces from discrimination based on their military service. Two major protections provided by the USERRA are as follows:
  1. former and current military personnel cannot be discriminated against by employers on the basis of their military service, and
  2. former and current military personnel are to be reinstated to their predeployment job when they have returned from duty.
One key feature of the USERRA is that it creates a protected class based on military service. Recall from our previous article “Discrimination: How and Why It Can Be Legal?” that one way for certain types of discrimination to be made illegal is for a law to create a protected class. USERRA’s provisions apply to all private and government employers, regardless of their size. Additionally, when a service member returns to his or her job, the employer must make reasonable accommodations for that employee who has incurred new disabilities or aggravated existing ones. As alluded to at the very beginning of this blog post, one way veterans can be discriminated against is during the interview process. Questions such as “Do you need to see a counselor based on things witnessed or experienced during military duty?” or “Do you expect to be called to duty anytime soon?” can be evidence of illegal discrimination based on military service. A “civilian” analogy to those questions might be, “Do you need to take time off from work to see a counselor for any mental health issues?” or “Do you plan on having a baby soon?” If you’ve read our other blog posts and articles, you’ve learned that those types of questions are asking for trouble. For more information about the USERRA, check out the Military section of our website, where we go into further detail about the USERRA and how it may apply to you.

Veterans’ Preference

soldiersEven if a veteran did not suffer from any service-related injuries or is not discriminated against based on his or her military service, it can be more difficult for a veteran to find a civilian job than for someone who has never served in the military. The dailybeast.com’s article “After Soldiering, a Challenging Transition Into Civilian Work” goes into specific detail as to some of the challenges veterans face when trying to find a civilian job. Though not explicitly designed to alleviate some of these cultural and skills-based challenges many veterans face when applying to civilian positions, Congress enacted the Veterans' Preference Act of 1944. This law created the veterans’ preference, which entitles qualified veterans a preference over nonveterans when applying for federal jobs. This preference also means that if there are layoffs, veterans are less likely than nonveterans to be let go. The veterans’ preference was explicitly enacted in recognition of the service and sacrifice of veterans, and it does boost veterans’ chances for being hired into a federal government job. The Veterans’ Preference Act does not apply to private employers and in no way guarantees a job or increases the chance of promotion. Also, many states such as Minnesota, Nebraska, Pennsylvania, Virginia, and Washington have similar laws that apply to state positions. Further information about the veterans’ preference can be found at the US Office of Personnel Management’s Veterans Services page and in the US Department of Labor’s Veterans’ Preference brochure.

Summing It Up

  • The USERRA provides the following protections to current or former members of the US military: (1) they cannot be discriminated against by employers based on military service, and (2) they are to be reinstated to their predeployment job when they return from duty.
  • USERRA’s provisions apply to all private and government employers, regardless of their size.
  • Upon return to his or her job, the employer must make reasonable accommodations for the employee who has incurred new disabilities or aggravated existing ones.
  • The veterans’ preference is an advantage where qualified veterans receive a preference over nonveterans for federal government positions. This advantage applies to the hiring and firing of employees.
  • The veterans’ preference does not guarantee a job or the right to a favorable internal employment decision, such as a promotion.
  • Many states have veterans’ preference laws similar to the federal law.

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