USERRA Lawyer in Los Angeles (Military Service Discrimination)

"We owe a great deal of gratitude to every person who has chosen to sign up for military duty. Such service often is dangerous and almost always involves substantial sacrifices in terms of time away from family and lost income. The last thing our service men and women should have to worry about is losing their jobs when they return from performing their service obligations."
                             --- James W. Johnston, Esq.


Overview

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Uniformed Services Employment & Reemployment Rights Act (USERRA)

The Uniformed Services Employment and Reemployment Rights Act (“USERRA”) (38 U.S.C. §§4301-4333) prohibits discrimination in employment against individuals because of their service in the Armed Forces Reserve, the National Guard, or other uniformed services. It prohibits an employer from denying any benefit of employment on the basis of an employee's membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services. USERRA also protects the right of veterans, reservists, National Guard members, and certain other members of the uniformed services to reclaim their civilian employment after being absent due to military service or training. The Act has three purposes: to increase civilian participation in the uniformed services; to minimize disruption in uniformed service members' lives; and to prohibit discrimination against service members. To achieve these goals, USERRA's provisions are liberally construed in favor of the service member, while employer defenses are narrowly construed and contrary state laws or private agreements are prohibited.

(Read the Statute)
USERRA, 38 U.S.C. §§4301-4333

(Read Federal Regulations Relating to USERRA)
20 C.F.R. 1002 et seq.



California Military and Veteran's Code

Further protection is provided under state law pursuant to California Military & Veterans Code §394.  This statute provides that no person shall discriminate against any enlisted member of the military or naval forces of the United States because of that membership. Section 394 also provides that no employer or person shall discharge any person from employment because of the performance of any ordered military duty, or prejudice or harm him in any manner in his employment, position, or status by reason of performance of military service or duty.

(Read the Statute)
California Military and Veteran's Code §394

  


Want to Find Out Right Away if You Have a Valid Case Under USERRA or the California Military and Veteran's Code?

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25 Years Experience
Mr. Johnston has been a lawyer for more than 25 years, and is fully qualified to handle your military discrimination claim.  If you believe you have been discriminated in your employment because of your military service, we invite you to contact our office and make an appointment to speak with attorney Johnston about your case.  

Military Service Discrimination
Resource Links

Department of Labor Userra Advisor

The Catholic University of America - USERRA Page

 

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USERRA - All Employees Covered

All employers, regardless of size, and all employees regardless of length of employment are covered under USERRA 

At-Will Employees
Even "at-will" employees are entitled to the legal protections provided by USERRA, and can sue an employer who has engaged in this type of discrimination.  

Employee Rights Under USERRA
An employee taking leave under the Act to perform military service is entitled to be re-employed, with reinstatement of benefits, on completion of the service, provided that the following conditions have been met:

  • The cumulative leave must not have exceeded 5 years; (with certain exceptions)

  • The employee must have provided proper advanced notice to the employer of the leave; and
  • The employee must report back to work or submit an application for re-employment within the statutory time frame as determined by the length of the employee's military service.

Protection Against Discharge
Under the Act, an employee who is reemployed following a leave of absence of more than 30 days is protected from being terminated without cause for a period of time following restatement, depending on the length of service, e.g. one year if the period of service was one year or more.  If the employee is terminated within this time period, it is the employer's burden to prove that the termination was for cause.

Sample USERRA Federal Court Complaint for Damages


 


Selected USERRA Cases

Wallace v. City of San Diego, 460 F.3d 1181 (2006). The plaintiff was employed as a sergeant with the San Diego Police Department, and was also an officer in the Navel Reserve. After returning from serving on active duty, he applied numerous times for job promotions but was never considered. After serving additional tours of duty, the plaintiff was reassigned to a less desirable position far from his home. He was also singled out for unfair discipline. The appeals court upheld $256,000.00 in damages for violating USERRA.


FAQS

What types of service in the uniformed services are covered by USERRA?

What status or activity is protected from employer discrimination by USERRA?

Who has the burden of proving discrimination or retaliation in violation of USERRA?

What must the individual show to carry the burden of proving that the employer discriminated or retaliated against him or her?

Are States (and their political subdivisions), the District of Columbia, the Commonwealth of Puerto Rico, and United States territories, considered employers?

Does an employee have rights under USERRA even though he or she holds a temporary, part-time, probationary, or seasonal employment position?

What rights does an employee have under USERRA if he or she is on layoff, on strike, or on a leave of absence?

Is all service as a member of the National Guard considered "service in the uniformed services?''

What constitutes cause for discharge under USERRA?

What seniority rights does an employee have when reemployed following a period of uniformed service?

 

 


The above information is provided as a courtesy of The Johnston Law Firm, and constitutes only a brief summary of some general employment law, discrimination issues and related legal rights under California law.  As such it does not constitute legal advice, and you should contact an attorney to discuss any specific employment issue you may have.  For further questions, please contact our  office on the forms provided.

355 S. Grand Ave., Suite 2450
Los Angeles, California 90071
(213) 291-6977

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