Employment and USERRA

2015-03-05T00:03:04-05:00

I recently had a situation at work and feel that I am correct in my view, but was hoping for some input from those with a little more knowledge of the subject than myself.
Situation: I arrive to my normal work shift early and inform the most senior supervisor that I'd be absent the next day for military duty I had to perform, that went over without a hitch.
While conducting my work shift from 3pm to 11pm I was told by a different (less senior supervisor) with knowledge of my near future absence that I would have to stay over 4 hours until 3am. I told him that I couldn't as I had military duty early the next day, which he then said, "unless you can find someone to stay over for you, which there isn't anyone, you're going to get a point" (a write up for not staying over late), to which I said (repeating to him for a second time basically), "Steve (the more senior supv.) Is already on the same page, I can't stay over because I have military duty early tomorrow."

I have to be in the neighboring state which is almost a 2 hour drive prior to 8 am.
It's almost a 1 hour drive home from work.

So the plan if I stayed late would be work 1500 to 0300 (12hrs), get home at 0400 and leave at 0600 to be at my unit at 0745.

Am I covered by USERRA from receiving that point I was threatened with, as well as any other retaliation for my military duty?

Response by SSG Private RallyPoint Member made Mar 5 at 2015 12:11 AM

2015-03-05T00:11:51-05:00

I take it this is a civilian employment issue?

If so did you publish your drill dates to them? As long as they knew in advance and your senior supervisor knows you should be O.K.

I would call the senior though to ensure you are not going to have issues.

Response by MSG Private RallyPoint Member made Mar 5 at 2015 12:47 AM

2015-03-05T00:47:03-05:00

You are covered im sure. You have a great tool you can use in the ESGR (Emoloyer Support of the Guard and Reserve). These guys know all the ins and outs of USERRA and are very much trained to deal with employer issues. Give them a call they can have one of their omnibudsmen contact your employer on your behalf if need be.
That all said you should give your employer your BA schedule since they are usually done for an entire year. I always took the day before BA off when I worked a 4-10 just to make sure I had ample rest before BA.

Response by SPC Lukas Jones made Mar 5 at 2015 12:53 AM

2015-03-05T00:53:10-05:00

Contact the ESGR of the already senior manager didn't remove the point.

Response by SFC Glenn Cober made Mar 5 at 2015 1:46 AM

2015-03-05T01:46:03-05:00

Well apparently your employer is not well versed on the legality and your legal rights as a military service member. My recommendation is to escalate this higher and provide your senior leadership a copy of the mandated law protecting your rights. Also, I would talk with the HR DEPT. Below is Title 38 of the U.S. Code. Good luck

http://www.justice.gov/.../EmploymentRights.p...
civilian employment to protect our liberty, we have an obligation to them to protect their legal .... Civilian Employees Who Perform Active Military. Duty . .... (USERRA ), Chapter 43 of Title 38, U.S. code.

Response by Sgt Mathew Meyer made Jul 16 at 2023 1:39 PM

2023-07-16T13:39:20-04:00

ESGR Ombudsman Director/ESGR National Trainer/Attorney here.
You are covered by USERRA and there are a number of points. First, you gave proper advance notice of your uniformed service.
Second, USERRA requires that an ER release you from work with sufficient time to report for military duty "fit to perform" that duty. 20 CFR 1002.74. This is typically the time for safe travel and "rest," which the DOL VETS interprets as at least 8 hours, perhaps more depending on circumstances. (Even your regular shift wouldn't comply, but it is up to the SM whether to voluntarily work that shift.)
Finally, you do not need to obtain your ER's "permission" to leave for uniformed service. See, 20 CFR 1002.87.
I understand this is an old post. However, there is NO STATUTE OF LIMITATIONS on USERRA claims. If you've been discriminated against, or denied benefits under USERRA, you should contact ESGR or DOL VETS to discuss your rights.