Can I Be Fired for Taking Time Off Work for Military Service?
Our employment lawyers help servicewomen/men like you every day and are asked questions regarding their job security because after military service people want to know that their life can continue. Examples of such questions include:
- Can I be fired for taking time off work for military service? If that happens, can I hire an attorney to sue my employer?
- What are military leave laws for employers?
- How much time off is an employee entitled to prior to reporting for military service??
- Can an employer fire you for joining the military?
- If I join the reserves will I lose my job?
- What are the laws regarding joining the military while employed?
Serving in the military is one of the noblest professions that exist. If you are a member of the military – like the National Guard or Reserves – your “normal day-job” is protected under federal and state law if you get the Call of Duty. Your active duty could last for months at a time, so it pays to know your rights if you are called to military duty. Your duty is to your country, but you may have other thoughts that course through your brain after you are activated for service. One such thought that pops into your brain might be, Will I have a job if I return from my military service? You may want to put everything in front of your country, but your other obligations, like your family and life after your service, may be hard to push aside. And so the question remains: can your employer terminate you if you are called in for military service?
Our Los Angeles attorneys want to ensure you that your rights are not alienated. If you have any questions after reading this article, or if you would like to hire a lawyer to sue your employer for wrongful termination or discrimination, you can call us any time. We are in Los Angeles but we can handle cases anywhere in California.
What Will Happen to My Current Job When I Leave for Military Service?
When one is activated for military service, they must leave their job for days, weeks, and even months at a time. There are bound to be disadvantages to people who serve in the military, but federal and state laws prohibit employers from discriminating against employees who serve in the military. There are federal laws which provide protections for reinstatement rights, health insurance protection, and the right to be not be discriminated against because of your military status.
USERRA: The Federal Law to Protect Service Members
The Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994 was written and made a law in order to protect the individuals who serve this country. USERRA exists to ensure service members that they can retain their civilian employment and benefits, as well as look for jobs free from any form of discrimination because they serve the country. The Act expanded the length of cumulative time from which an employee may be absent from work without any reprimand from the employer, as well as retain their reinstatement rights. USERRA also protects those military individuals who may have become disabled in their active duty.
Which Military Members Are Protected by USERRA?
USERRA’s statutes protect those service members who serve, or have served, in the uniformed services from any discrimination by their employers. This can be either voluntary or involuntary, and applies to employers who exist in the private or public sector.
Uniformed Services is an umbrella term which covers many kinds of military service obligations. The term “uniformed services” applies to the following kinds of military service members:
- Army, Navy, Marine Corps, Air Force, and Coast Guard;
- Army Reserve, Navy Reserve, Marine Corps Reserve, Air Force Reserve, Coast Guard Reserve;
- Army National Guard or the Air National Guard;
- Commissioned Corps of the Public Health Service;
- All other services that are designated by the President during a time of war.
When referring to the type of service that an individual performs under their military service, USERRA protects the following types of services:
- Active/inactive duty for training;
- Active duty;
- Attending a U.S. military service academy;
- Any funeral honors you’ve been called to do;
- National Guard duty;
- Any military-fitness-type examinations;
- Activated in the National Disaster Medical System realm or as a participant in an authorized training program.
Is Every Service Member Eligible for Reinstatement After Their Return from Service?
In order for an individual to be protected under USERRA, the service member must meet five conditions in order to be protected for their reinstatement:
- The service member must have given have a written or oral notice to the employer prior to their departure (unless the absence was a military necessity);
- That job must have been legitimate, meaning that the job was long-term and have all the reason to expect it would have continued;
- The individual must not have exceeded the 5-year cumulative period limit on their service.
- Must not have been dishonorably released from military service, any other release qualifies that service member;
- The service member must report back to their previous job in a timely manner or, equally, submit an application for reemployment.
How Much Time Am I Allowed to Take Off Work? Is There a Limit?
It very clearly states that reemployment protection that is offered to Uniformed service members does not depend on timing, duration, nor the nature of the service for which the individual member was called. There is a cumulative limit per employer, and that limit is five years. If you are still within your five years, you are protected and still retain your rights for reinstatement. Because it is per employer, if you get a new job you will get a brand new 5-year limit.
But the 5-year limit does not come without its set of exceptions:
- The service limit is exempt if the individual is unable to obtain release or is required to complete an initial period of service – for example, if an initial enlistment lasts longer than five years, as nuclear power training does, the employee will maintain the reinstatement rights with an employer.
- Annual training, drills (which technically counts as inactive duty training), involuntary active duty extensions (which includes, by the way, training that is deemed necessary by the individual’s branch of the military), and recalls due to a national emergency or war are all not counted towards the 5-year limit.
- Service that is performed for an economical purpose if the individual’s employer is violating that individual’s right to reinstatement.
If you are still holding the same position you held since before USERRA’s effective date, December 12, 1994, duty served under the old laws will still count against USERRA’s 5-year limit but only if the limit that you served counted against the previous law’s service limits.
If your employer does not reinstate you, you may have the legal grounds to file a lawsuit against them and collect the damages to which you are entitled like reinstatement, back pay, front pay, and any other benefits which you may have held at your previous position.
We at the California Labor Law Employment Attorneys Group are here to serve you, as you have served this country. We offer free consultation and a zero-fee guarantee, which is our promise to you that we will give you the best possible representation. Contact the California Labor Law Employment Attorneys Group today!