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Mansell Law, LLC Experienced Employment Lawyers

New York City Military Discrimination Lawyer

Protecting Those Who Protect Our Country

As a member of the National Guard or Reserves, you commit to one weekend a month plus two weeks of service each year for training and drills. Additionally, you could be called into active duty at any time and even deployed overseas. Some employers welcome the skills, discipline and commitment that military members bring to any job they do. Others, however, are leery about having to let their employees off for two weeks every year or see them get deployed and leave their position for months or years. These employers might refuse to hire reservists and make up some reason why the person isn’t hired. Likewise, if you join the Guard or Reserves after you are already working somewhere, you might find yourself harassed, discriminated against or even wrongfully terminated based on your reserve status. These actions are illegal. If they happen to you, call Mansell Law in New York City. Our NYC military discrimination lawyers are here to make sure you get the full protection of federal and New York employment and civil rights laws, including forcing your employer to compensate you financially for violations of the law. Call Mansell Law if you have been the victim of military discrimination in New York City.

USERRA Protects the Employment Rights of Military Servicemembers

USERRA stands for the Uniformed Services Employment and Reemployment Rights Act. As its name implies, USERRA protects the rights of members of the military when it comes to employment or reemployment. USERRA is a civil rights law like Title VII, and it protects you from discrimination, harassment or retaliation based on your military status. This protection means an employer cannot refuse to hire you or fire you based on your service in the reserves, nor can the employer take any other adverse employment action against you because of your military status, such as demotion, denial of promotion, etc.

In addition to its antidiscrimination provisions, USERRA also makes it clear that employers are required to give you time off for your inactive duty training, even if your service branch schedules your service time at an inconvenient time for your employer. Your employer could call up your commanding officer and request that your reserve duty be rescheduled for another time, but you can’t be punished in any way or refused time off for obeying a military command to show up for service when ordered to.

Importantly, USERRA also protects your job if you get called up for an active duty deployment. Your employer must hold your job for you. While you are gone, you can choose to continue participating in any employer-based health plan coverage for as long as 24 months. When you return from service, you are entitled to return to your job or an equivalent position if your old job doesn’t exist.

USERRA reemployment rights are conditioned on the following criteria:

  • You give your employer notice of your upcoming service
  • You have five years or less of cumulative service in the uniformed services while with that employer
  • You return to work or apply for reemployment in a timely manner after your service is concluded
  • Your separation from service is not due to a disqualifying discharge or under other than honorable conditions

Employers must follow the escalator principle when returning you to employment. This principle means that you do not lose any seniority status, raises, promotions, step movement on the salary schedule, etc. for the time you were away. Instead, you are returned to your position in a place as though you had never left. This could also mean that if your job was subject to a layoff or reduction in force while you were gone, you could be out of a job when you return. The escalator principle is frequently misunderstood and misapplied by employers. Call our office if you think you are not being treated appropriately in your return to employment.

FMLA for Military Servicemember Caregivers

The Family and Medical Leave Act (FMLA), which provides 12 weeks of unpaid leave to employees for family and medical reasons, includes specific provisions for servicemember caregivers. These provisions include servicemember family leave amounting to 26 weeks of unpaid leave for a qualifying exigency arising out of the fact that the spouse, child, parent or next of kin of the employee is on covered active duty or has been notified of an impending call or order to covered active duty in the Armed Forces. If you need leave from work to care for a servicemember but your boss won’t let you off, call our office to see if the servicemember and the injury or illness are covered by FMLA.

Dedicated Employment Lawyers Fighting Military Discrimination in New York City

If you find yourself discriminated against at work based on military status, call Mansell Law at 646-921-8900 for a free consultation with a group of experienced New York employment lawyers dedicated to helping military service members receive the full protection of the law.

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