In recognition of the sacrifices of our uniformed service members, and the need of reserve members and National Guard members to balance the demands of serving their country and maintaining their jobs, the federal government has passed laws protecting armed service members concerning their “reemployment” rights. Called the Uniformed Services Employment and Reemployment Act (USERRA), federal law 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 types of service covered by the Act include active duty, active and inactive training, funeral honors duty, and periods of absence for the purpose of obtaining a fitness for duty examination. The USERRA covers nearly all employees, including part-time and probationary employees, and it covers almost all U.S. employers, whatever their size. If you have questions concerning veteran’s rights, and/or your right to reemployment after serving in the military, it important to speak to a knowledgeable Georgia veterans rights attorney right away.
A recent case found that this right is so fundamental that veterans are entitled to get their jobs back, even if there’s potential dishonesty on the part of the veteran. In Petty v. Metropolitan Gov’t of Nashville & Davidson Cnty., the Sixth Circuit Court of Appeals determined that it was improper to delay a patrol sergeant’s reentry into work as a Nashville police officer, despite questions about his honesty on a re-entry application.
According to case reports, the veteran returned from active duty and sought reinstatement for full time employment as a police sergeant. However, while deployed on service to the Middle East as part of the National Guard, the sergeant was caught brewing home wine. In order to avoid a court martial, he resigned. The charges against the veteran were dismissed, and he received an honorable discharge. While seeking reemployment, a question included on a personal history update asked, “During your absence, were you arrested, charged, detained, or a suspect in any criminal or military disciplinary action for any reason or do you have any action pending?” The former police office answered “yes,” but did not reveal any details of the accusation.
The police department then refused to reinstate him to his previous position.
The court of appeals found that the police department violated reinstatement procedures under USERRA, and that the delay of re-employment violated veterans” rights law.
USERRA’s re-employment provisions entitle returning veterans to reinstatement without having to undergo additional screening, the court explained. It was a violation of USERRA to impermissibly delay the officer’s reinstatement pending an investigation into return-to-work paperwork. Further the police officer should not have been required to participate in the screening process at all under USERRA. Because USERRA prohibits employers from placing “additional prerequisites” on returning veterans, the appeals court ruled that “rescreening employees before reemploying them” constituted a prohibited prerequisite on full re-employment.
Further even though the police department could fire the man for dishonesty after he is reemployed, it is a violation of USERRA not to reinstate him initially.
If you are a service member getting ready to return to work, you are thinking about signing up for duty and are unsure of how it will affect your employment, or you feel you have been discriminated against because of your service contact a top Atlanta veteran’s rights attorney at Buckley Bala Wilson Mew LLP right away.