Is my situation a USerrA violation?

SPC Private RallyPoint Member — Mon, 19 Nov 2018 12:08:37 -0500

Good afternoon fellow brethren. I have a huge question as I am unsure how to pursue this. I recently came back from a 10 month LOA from my civilian job for training to be a 25B. Upon return I recieved my current civilian job back. However, there was a promotion for a department that I was trained in, and I was denied the promotion due to the other applicant having participated in projects and opportunities that where not available to me before my leave. I am deeply frustrated with this as I was the only person that wasn't in this department that is trained for it in the entire company, as everyone else trained got hired in during my leave.

Response by SFC(P) Private RallyPoint Member made Nov 19 at 2018 1:30 PM

SFC(P) Private RallyPoint Member — Mon, 19 Nov 2018 13:30:19 -0500

I would bring it up to the HR Rep get something in writing. If you feel they have violated the USerra I would call them.

https://osc.gov/Pages/USERRA-FilingComplaint.aspx

USERRA-FilingComplaint.aspx

Response by SGT Joseph Gunderson made Nov 19 at 2018 3:02 PM

SGT Joseph Gunderson — Mon, 19 Nov 2018 15:02:36 -0500

No. You are protected from getting canned from a job due to obligations to the military but that doesn't mean that you are going to be given preferential treatment. They were there and working, demonstrating their proficiency and performance, you weren't. Why should you be given a promotion over those who were there? You weren't denied anything; others were rewarded. It isn't the same thing.

Response by SrA John Monette made Nov 19 at 2018 3:12 PM

SrA John Monette — Mon, 19 Nov 2018 15:12:55 -0500

even if you were physically at the company when the promotion came about, that still would not guarantee that you would get it. even if you had participated in the projects, opportunities, etc, you still could not guarantee that the promotion would have been given to you. what if you had been on extended illness leave? would you still think the promotion should have been yours?

Response by SGT Jim Ramge, MBA made Nov 19 at 2018 5:25 PM

SGT Jim Ramge, MBA — Mon, 19 Nov 2018 17:25:19 -0500

Tim, a lot of quarterbacks on here...
See section C., you might have a fight. If you are in good standing with the company, inquire through HR. If not, call the Department of Labor. They can make the inquiry for you sometimes in pursuant to the labor laws. Just be mindful that shit rolls down hill!

C. RIGHT TO BE FREE FROM DISCRIMINATION AND RETALIATION
If you:

Are a past or present member of the uniformed service;
Have applied for membership in the uniformed service; or
Are obligated to serve in the uniformed service;
then an employer may not deny you

Initial employment;
Reemployment;
Retention in employment;
Promotion; or
Any benefit of employment.

https://www.federalregister.gov/documents/2005/12/19/05-23960/notice-of-rights-and-duties-under-the-uniformed-services-employment-and-reemployment-rights-act

Notice of Rights and Duties Under the Uniformed Services Employment and Reemployment Rights Act

On March 10, 2005, the Veterans' Employment and Training Service (VETS) of the Department of Labor (Department or DOL) issued an interim final rule to implement a requirement of the Veterans Benefits Improvement Act of 2004 (VBIA), Public Law 108-454 (Dec. 10, 2004). The VBIA amended the...

Response by MSgt Michael Smith made Nov 20 at 2018 8:05 AM

MSgt Michael Smith — Tue, 20 Nov 2018 08:05:19 -0500

It doesn't sound to me like you have a case. You were gone. The other person got the projects at least partially cause you were physically not there. Those projects were used as a criteria for the promotion. 'NOT BEING THERE' isn't discrimination. You chose to serve, and in life you have to pick what your priorities are. I could be making a whole bunch more money than I am now, but I chose to serve, and now I have to work my way up in the civilian world. It's not discrimination. It's just how it is.

Response by PO2 Nick Burke made Nov 21 at 2018 6:36 PM

PO2 Nick Burke — Wed, 21 Nov 2018 18:36:19 -0500

Not much of a case here. You weren't there they were. Just like maternity leave. They now have more experience and actual seniority.

Response by SPC Private RallyPoint Member made Dec 3 at 2018 4:13 PM

SPC Private RallyPoint Member — Mon, 03 Dec 2018 16:13:45 -0500

Just an update, under my situation thanks to SGT Ramge even my job is unclear as to whether or not my situation is a violation or not due to that section. They are inquiring internally to get me their response shortly as some reps feel the same that it may apply solely because I was already trained for the position in addition to being the last that was trained that didn't get hired into that department due to my leave.

Response by SPC Private RallyPoint Member made Feb 1 at 2019 12:48 PM

SPC Private RallyPoint Member — Fri, 01 Feb 2019 12:48:03 -0500

Just an update, after several months on inquiries I recieved the position as well as the other person. My job agreed that I should have been in that position and ended up with a $3/hour raise.

Response by Sgt Mathew Meyer made Jul 16 at 2023 2:00 PM

Sgt Mathew Meyer — Sun, 16 Jul 2023 14:00:40 -0400

ESGR Ombudsman Director (MN)/ESGR National Trainer/Attorney Here.
USERRA also governs promotions, whether "discretionary," automatic, or a "promotion opportunity." The standard is whether it is reasonably certain you would have received the promotion while you were on military service. Sometimes that is simple to determine. Sometimes, in "discretionary" promotions, it involves comparing the objective qualifications of the various applicants to determine whether you would/should have been selected. Finally, with "promotion opportunities" based upon a skills test or exam, upon return the ER must allow reasonable time for the SM to prepare for and take the exam. If successful, the promotion should be retroactive to the date they would have received it had they remained continuously employed. 20 CFR 1002.191-194.