Have you experienced discrimination in your civilian job for being a Reservist (despite it being against Federal and most State laws)?

CW3 Private RallyPoint Member — Fri, 07 Jul 2017 19:33:25 -0400

I have been in the Army National Guard for the past 18 years and at my current civilian job for about 11 years. In the last few years, I have experienced what I believe to be discrimination based on job assignments and promotability due to the fact that I was away on a military deployment and various (shorter) military assignments over the years. Since then, I have watched other less-qualified people get assignments and promotion points over me, and despite continued requests, I am kept where I am and where I have been for the past 11 years... A supervisor told me "off the record" that it was because administration doesn't know when I might leave again due to my military obligations. This seems to be a clear violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA) in addition to the California Military and Veterans Code. However, I have no proof. Beyond going to my union, I am not sure what my options might be...

Response by Cpl Kirk Lurch Davis made Jul 7 at 2017 7:37 PM

Cpl Kirk Lurch Davis — Fri, 07 Jul 2017 19:37:07 -0400

Yes

Response by PFC Private RallyPoint Member made Jul 7 at 2017 7:56 PM

PFC Private RallyPoint Member — Fri, 07 Jul 2017 19:56:33 -0400

Not yet so far but it helps my employers all have some sort of military connection or are veterans.

Response by PFC Private RallyPoint Member made Jul 7 at 2017 7:58 PM

PFC Private RallyPoint Member — Fri, 07 Jul 2017 19:58:23 -0400

I'm sorry that this has been happening to you sir and it's unwarranted. You should talk to your Union about this.

Response by SPC Private RallyPoint Member made Jul 8 at 2017 3:34 PM

SPC Private RallyPoint Member — Sat, 08 Jul 2017 15:34:30 -0400

I no longer work for them but I think so. I had to explain monthly sometimes weakly what the National Guard was to my senior management. Every time I went on Drill, AT, or when Active Guard orders came up they wanted to know when my two weeks was going to be, or when I would be back and they were not sure if they could keep me as a manager because of it. They would schedule me to work on Drill then try to blame me when I informed them I could not work those days because of Drill even though I had given them a Memo and Drill Schedule from my Unit stating such.
It became a point that I would come into the store right before Drill or after Drill in my uniform to hand them a Memo about the next Drill or in the case of me getting orders for ADOS/ADNG. Sometimes I had a Battle with me when I did it, just to reinforce the point.

They got me on some loophole that I "quit" that I'm sure I could have fought and brought it to ESGR but at that point I was so sick of their BS I applied to three jobs, got three interviews schedules and picked up a full time job position at a private security company the next day. My Supervisor is prior Navy so he understands the Guard and Reserves and doesn't question Drill, AT, or Orders he just requests that I give him a heads up via email/text which I always give him as advanced notice as possible.

I'm happier doing this now, so it all worked out. I ended up meeting one of my former managers and he tried to be snide about me being a homeless vet and some bs. I smiled and informed him of my circumstance and walked away. I found out he was passed over for promotion for incompetence. So I think it worked out fine for me.

Response by SPC Private RallyPoint Member made Jul 8 at 2017 3:40 PM

SPC Private RallyPoint Member — Sat, 08 Jul 2017 15:40:29 -0400

Chief, is recording allowed in your State? It is in mine, and I had considered recording conversations with my management staff for possible use by ESGR but things kinda worked out.

Response by CAPT Kevin B. made Jul 8 at 2017 3:54 PM

CAPT Kevin B. — Sat, 08 Jul 2017 15:54:02 -0400

Sure, and as a CS working for the Navy. The GS-15 told me he'd never promote me because I was a God Dammed Reservist. I was a GS-13 at the time. Word somehow got back to DC with the Vice dropping a WTF dime on our Skipper. Several months later, I was offered two GS-14s on the same day. Both good jobs, one with a good boss, the other a head case. Took the smart path. Funny having the same Flags as my CS and MIL bosses. Also funny when they were out our way, they wanted office time with me. It was always on the MIL side stuff, but nothing's a perfect watertight seal.

Response by CW3 Private RallyPoint Member made Jul 9 at 2017 10:43 AM

CW3 Private RallyPoint Member — Sun, 09 Jul 2017 10:43:16 -0400

At this point I am considering leaving my current employer, which is unfortunate. However, if I do that I am not really sure what the benefit of filing a union complaint would be. Maybe it would help others in my situation there in the future?

Response by SMSgt Thor Merich made Jul 9 at 2017 5:46 PM

SMSgt Thor Merich — Sun, 09 Jul 2017 17:46:28 -0400

Absolutely. After I got deployed, my performance rating went down (with no explained reason) and I missed out on a promotion. All other ratings (before and after) were Exceptional. I just dealt with it and still got promoted, it was just delayed a few years.

USERRA has great intentions, but its almost useless in real life. Very difficult to prove bias by the employers and no one really to help the service member.

However, it is also important to remember to see things from the employer's standpoint. If you have an employee that is gone for most of the time, that makes them unreliable in the long run. Also, some reservists take their civilian jobs for granted, they volunteer for every assignment/deployment that comes along at the expense of their civilian jobs. As a Reservist, its important to walk that fine line between meeting your civilian responsibilities and your military responsibilities.

Response by WO1 Private RallyPoint Member made Jul 11 at 2017 9:40 AM

WO1 Private RallyPoint Member — Tue, 11 Jul 2017 09:40:36 -0400

Fort the most part, I've been lucky so far. I'm going to be away for about 40 weeks over the next two years, so we'll see if that luck holds. I have heard the horror stories though. Especially being in Germany. German employers are not bound by USERRA and I've seen soldiers lose their jobs just for going to 2 week annual training. It can set up quite a bit of conflict when it comes to Army career advancement while overseas.

Response by Sgt Mathew Meyer made Jul 16 at 2023 12:58 PM

Sgt Mathew Meyer — Sun, 16 Jul 2023 12:58:02 -0400

ESGR Ombudsman Director/ESGR National Trainer/Attorney here.
Under USERRA an ER engages in unlawful discrimination if the EE's uniformed service was "a motivating factor" in the adverse decision. "defense)). 38 USC 4311. ‘‘Military status is a motivating factor if the defendant relied on, took into account, considered, or conditioned its decision on that consideration.’’ 70 Fed.Reg. 75250. Courts and DOL VETS understand that "direct" evidence is often lacking, and so they rely upon "circumstantial evidence." This typically involves evidence relating to one or more of the following issues: "(1) 'the employer’s expressed hostility towards members protected by the statute together with knowledge of the employee’s military activity,' (2) 'the proximity in time between the employee’s military activity and the adverse employment action,' and (3) 'any inconsistencies between the proffered reason and other actions of the employer.'..." A fourth issue examined is the disparity between the SM and similarly situated civilian co-workers.
Typically, depending upon how strong the evidence above is, a SM can overcome a summary judgment motion and the case will be sent to a jury to decide whether discrimination actually occurred or whether the ER would have engaged in the action regardless of the SM's uniformed service.
This is significantly different from other discrimination claims under federal and many state laws, which employ a "burden shifting" process referred to as the "McDonell-Douglass burden shifting" test, that could result in summary judgment in favor of the ER even after evidence of discrimination is produced. Therefore, the plaintiff under USERRA will have a better chance of proving a discrimination claim than those who are pursuing a different type of discrimination claim.
Finally, regarding your own situation, you have "proof" in your own testimony attesting to the statements by your ER connecting the adverse employment action to your absences due to military service. Plus, if you have lagged behind your coworkers in promotions or work opportunities, without a legitimate articulable reason, that is further evidence. There may also be communications or personnel records documenting a connection between your uniformed service and the employer's adverse actions.
In these circumstances, you should contact ESGR to "request assistance." I understand this post is from a number of years ago, but there is NO STATUTE OF LIMITATIONS for USERRA claims. There is a common law doctrine of LACHES that may apply, so you should look into whether you are a victim of USERRA discrimination and do not delay in seeking help. If ESGR cannot assist, go to DOL VETS.