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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.
Posted in these groups: 
Job/Skill Training
Job/Skill Training
Posted 7 y ago
Responses: 8
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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.
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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
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...
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SPC (Join to see)
SGT Jim Ramge, MBA I greatly appreciate your input. Upon further digging and research the "escalator principle" applies in this situation, at least in part. Because this particular promotion had 3 additional promotional opportunities while I was on leave, the first opportunity could have been used as a reasonable certainty that i would have recieved the job as I was recently trained for the position less than 3 months prior to the opening of the position. In addition during my leave any other employee that was trained for this position recieved the position during 1 of the 3 additional instances. Therefore the escalator principle would apply to my situation. I do greatly appreciate your help as your comment was the top of the rabbit hole to find the information and my company's HR is pleased I went to them as opposed to filing the USERRA complaint with VETS.
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SPC (Join to see)
SPC (Join to see) might I add I did wait until the other employee started their new position so that they still get what they where told the would receive. My company has policies in place to prevent them from being removed from the position once granted as well.
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SPC (Join to see)
Sergeant I just wanted to personally thank you your post lead me down the rabbit hole that gave me the information needed to have this done the job end up in my favor thank you so much
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SGT Jim Ramge, MBA
SPC (Join to see) Sure thing Timothy, that why this site was built - another way to help troops such as yourself! P.S. Just Jim now, long since been retired.
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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.
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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.
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.
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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.
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Not much of a case here. You weren't there they were. Just like maternity leave. They now have more experience and actual seniority.
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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.
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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
https://osc.gov/Pages/USERRA-FilingComplaint.aspx
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