Employment Rights of Guardsmen and Reservists

September 13, 2022
By: Charles Lamberton

Those who serve or who have served in the military are accustomed to regular refrains of “thank you for your service” from the public.  But what reservists need most is for employers not to discriminate against them because of their service.  It is their volunteer service, after all, that saves other people from being drafted. […]

Those who serve or who have served in the military are accustomed to regular refrains of “thank you for your service” from the public.  But what reservists need most is for employers not to discriminate against them because of their service.  It is their volunteer service, after all, that saves other people from being drafted.

Prohibiting employment discrimination against servicemembers reflects a basic level of respect owed to those who sacrifice for the country and who continue to raise their hands for duty in the Reserves, knowing the added demands, disruption, and uncertainty that may bring.  Moreover, it serves the important national interest in fostering a robust military reserve, that remains prepared to activate and defend the nation, while its members continue to work full-time in the civilian economy.

Facts that may show that your military is being held against you

Your employer:

  1. Tells you to choose between the military and your civilian job
  2. Asks whether your military service is voluntary or involuntary
  3. Says that it doesn’t want you volunteering for additional military duty because you are needed at your civilian job
  4. Complains that your military absences are “hurting the team,” a “strain on the department,” or causing budgetary problems
  5. Complains about scheduling inconveniences
  6. Asks you whether you can get out of your military commitments or reschedule your military commitments
  7. Reacts negatively or makes negative comments when told of your military obligation
  8. Questions you during your job interview about your military service obligations, days absent and similar matters
  9. Questions you about your military service and the possibility of being called to additional military service or active duty
  10. Comments that your military service shows a lack of commitment to your civilian job
  11. Refers to your military service as a “second job,” or to your civilian job as your primary job
  12. Calls the military base and complains or questions whether it is necessary for you to be on military leave
  13. Comments that your military service is having a negative effect on your performance 
  14. Investigates you even tangentially in connection with your military service

If you believe your past, current, or future military service has been held against you, contact us today at 412-258-2250 or cal@lambertonlaw.com.  

USERRA is intended to: (1) “encourage non-career service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service”; (2) minimize disruption in the lives of both service members and their employers; and (3) “prohibit discrimination against persons because of their service in the uniformed services.” Warren, 358 F. Supp. 2d at 309 (quoting 38 U.S.C. § 4301(a)).  “Because USERRA was enacted to protect the rights of veterans and members of the uniformed services, it must be broadly construed in favor of its military beneficiaries.” Maxfield v. Cintas, 427 F.3d 544, 551 (8th Cir. 2005);  Hill v. Michelin N. Am., Inc., 252 F.3d 307, 312-13 (4th Cir. 2001).

Section § 4311(a) of USERRA prohibits an employer from discriminating against any employee with regard to hiring, retention and promotion, or any benefit of employment because of past, present, or future membership in a uniformed service.  See 38 U.S.C. § 4311(a); Maxfield, 427 F.3d at 551; Gagnon v. Sprint Corp., 284 F.3d 839, 852 (8th Cir. 2002), abrogated on other grounds, Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). An employer violates USERRA “when a person’s membership in the uniformed services is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership, . . . or obligation for service.” See 38 U.S.C. § 4311(c)(1); Maxfield, 427 F.3d at 551; Gagnon, 284 F.3d at 852.

The Pennsylvania Military Affairs Act (“PMAA”) is the state law analog of USERRA. Courts construe the PMAA identically to USERRA.  Junguzza, 2014 US Dist Lexis 108832 * 6 (EDPa); Murphy, 542 Fed Appx 173, 180 (3rd Cir. 2013).  Notably, a termination that violates the PMAA also gives rise to a common law wrongful discharge claim with full, uncapped tort remedies.  Hamovitz, 2010 U.S. Dist. LEXIS 110937, at *19 (W.D. Pa. Oct. 19, 2010) (finding that refusal to hire service member in violation of PMAA gives rise to common law tort claim with full tort remedies including compensatory and punitive damages); Stadtmiller v. UPMC Health Plan, Inc., 2010 U.S. Dist. LEXIS 155550 *6-7 (W.D.Pa. 2010) (permitting common law wrongful discharge claim based on the PMAA). 

Voluntary service is protected.  USERRA protects both “involuntary” and “voluntary” military service. 38 U.S.C. § 4303(13) (Defining “service in the uniformed services” as “the performance of duty on a voluntary or involuntary basis in a uniformed service…”); 20 C.F.R. § 1002.6 (“USERRA’s definition of “service in the uniformed services” covers all categories of military training and service, including duty performed on a voluntary or involuntary basis, in time of peace or war.”); Kassel v. City of Middletown, 272 F. Supp. 3d 516, 533 (S.D.N.Y. 2017) (“[W]hether Plaintiff was volunteering for duty … or being ordered to appear is a distinction without a difference.  The fact that Plaintiff volunteered for, or voluntarily accepted military orders, is of no import in finding liability under USERRA, because whether or not [Plaintiff’s] orders were voluntary, firing a reservist because he or she receives military orders violates the plain language of [§] 4311.”).

An employee does not need her employer’s permission to enlist or serve in the military, and need not accommodate the employer’s interests or concerns when enlisting or performing service. An employee is not required to either ask or get his or her employer’s permission to leave to perform service in the uniformed services.  20 C.F.R. § 1002.87.  Nor is an employee required to accommodate his or her employer’s interests or concerns regarding the timing, frequency, or duration of uniformed service.  20 C.F.R. § 1002.104.

USERRA preempts conflicting employment policies or agreements. USERRA supersedes employment agreements, policies and practices that limit or eliminate any right or benefit provided by the Act, or that put additional conditions on entitlement to such a right or benefit.  38 U.S.C. § 4302(b).  See also, H.R.Rep. No. 103-65(I), at 20 (1993) (“[USERRA] reaffirm[s] a general preemption as to State and local laws and ordinances, as well as to employer practices and agreements …”).