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NOVA Legal Beat: Unequal Treatment for Reserve Military?

by Ethan Rothstein — July 16, 2014 at 2:30 pm 411 0

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Editor’s Note: This sponsored column is written by Mathew B. Tully of Tully Rinckey PLLC, an Arlington firm that specializes in federal employment and labor law, security clearance proceedings, and military law.

Q. My supervisor hates the fact that I have to miss work every so often so I can fulfill my obligations to the Reserves. Lately, he’s been reducing my responsibilities and pushing me to change my hours or move me to another department so I do not have to work under him. What should I do?

A. Members of the National Guard and Reserves already sacrifice much in their service to America; they should not have to sacrifice more because an employer resents their obligations to the military. The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits employers from denying members of the armed forces from any benefit of employment because of their military obligations.

The term “benefit of employment” is fairly broad in that it is not limited to the usual set of employee benefits, such as a health plan, pension plan, bonuses, and vacation. A benefit of employment also includes “any advantage, profit, privilege, gain, status, account, or interest (including wages or salary for work performed) that accrues by reason of an employment contract or agreement.” Reductions in responsibilities, shift changes and transfers strike at the very benefits of employment that USERRA aims to protect.

USERRA violations occur “only if the employee’s military status is a ‘motivating factor,’” the 4th U.S. Circuit Court of Appeals said in Francis v. Booz Allen & Hamilton, Inc. (2006).

“To establish a certain factor as a motivating factor, a claimant need not show that it was the sole cause of the employment action, but rather that it is one of the factors that a truthful employer would list if asked for the reasons for its decision,” the U.S. District Court for the Western District of Virginia said in Baylor v. Comprehensive Pain Mgmt. Ctrs. (2011).

Given that “discrimination is seldom open or notorious,” USERRA cases often rely on circumstantial evidence. Such circumstantial evidence could include the timing between the adverse employment action and the employee’s military service, differing explanations for why such actions were taken, negative comments made toward or about service members, and more favorable treatment of non-service member employees, according to the U.S. Court of Appeals for the Federal Circuit in Sheehan v. Department of the Navy (2001).

Employees who believe their employer has discriminated against them because of their military duty should immediately consult with an experienced federal employment law attorney who can prepare for them a USERRA lawsuit and represent them in federal court.

Mathew B. Tully is the founding partner of Tully Rinckey PLLC. Located in Arlington, Va. and Washington, D.C., Tully Rinckey PLLC’s attorneys practice federal employment law, military law, and security clearance representation. To speak with an attorney, call 703-525-4700 or to learn more visit fedattorney.com. 

The views and opinions expressed in the column are those of the author and do not necessarily reflect the views of ARLnow.com.

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