Userra Violation

[thepenster060]

What is the name of your state? New York

Ok, I will try my best to make this short.

My hubby is in the air national guard. Since 9/11 he has been on quite alot of involintary/and volinatary (sorry about spelling).
He was doing homeland security for about 1 1/2 years then out of nowhere
his civilian county employer called my husband and his sgt to ask him to come back to work, due to too much overtime at his civiian job from my husband not being there. well the air national guard agreed to let him go back, so there would not be and bridges burned.

to our surprise after he returned to work, my husband has recieved his annual
employer review while he was gone. It stated that my husband was gone from work for some time,and it also stated that he does not take his job serious, and if he does not like his job that he should to find other employment. also while he was back to work, there have been comments made to him verbally by his superiors in reguards to him military. oh did i mention that his civillian job is union..........

so he was back to work for about 2 months, and he was asked by the air national guard to deploy again (involintary) for 47 days, out of the country. AGAIN, his employer tried to stop this, by calling my husbands sgt.well it didn't work. To be honest, when my husband does these missions, he makes so much money that is is hard to refuse.

I am afraid he will lose his job though. I know he is covered without question under the USERRA. what reallly ticks me off too is that his sgt in the air national guard is no help, and told my husband that he needs to fix this .

we are thinking about filing a law suit against his civillain employer, but we are not sure how to procede. plus he wants to get those remarks on his employer review removed, because they are on his perminate record (soory about spelling again)

does anyone out there have any advise?????? oh, i also have power of attorney, so my hubby told me while he was away to start this process if i see fit.........thanks in advance

 

[Crazed98]

What are you going to sue the employer for?

Yes your husband is safe under USERRA but I do not know how it works with him volentaraly leaving his job to do home land security, especially if he is "double dipping".

Your best bet is to talk to a NG Jag officer. There should be one in his unit.

 

[thepenster060]

We want to sue for discrimination, and harrasment, and undue stress. his employer is threatning him with false write ups, and negative employee reviews, that stay with him on his personel record.....

I never said anything about "double dipping" but he is paid for 230 hours per year for military leave.

The law does state....involintary/or volitary (sorry about spelling again)
accually we recieved copies of the userra and i sent them to his employer

I think the problem is employers do not understand this law.

I have not yet contacted the jag office. we are waiting to see what happens when he goes back to work next month....

 

[fozzy2]

First off, a suit is probably not needed. Have you contacted the Department of Labor, which has an office that handles complaints? Check out:

http://www.dol.gov/elaws/userra.htm

A lot will depend on precisely what the company did and how they worded the evaluations. They can give him bad evaluations -- they can't use his military service as a reason. For example, if they say he isn't "serious about his job" and can cite examples from when he was at work then there is probably nothing you can do. If they say he isn't serious because he spends so much time on military duty, they've probably messed up bigtime.

It is true that USERRA covers people who volunteer for duty as well as those involuntarily recalled. But there may be limitations on just how many times (and how long) the person can be gone before the company can try and drop an employee. Protection is not unlimited, there is always a "hardship" argument the company can try and make. Having said that, however, the protections are very substantial.

If your spouse thinks they are angling to fire him, he should be especially careful to strictly follow the USERRA rules regarding when he has to report back to work, notification of absence, etc. etc.

 

[thepenster060]

my hubby has been with his employer over 5 years and always had the highest reviews.......professional, clean cut, superior service etc....etc.....
(he is also a marine,so he starches and shines his boots daily)

his annual review stated that officer ----- has been on military duty 3 month for training in texas, has been to p. rico for annual training, and has also been to new zealand for volintary orders. " it seems officer ----- is not serious about his job here, and should seek other employement"

now this was written from a sargent, and concured by a corporal.

i will be contacting jag tomorrow due to today being a holiday.

also, there are limitation under the userra.....5 years.

 

[Crazed98]

his annual review stated that officer ----- has been on military duty 3 month for training in texas, has been to p. rico for annual training, and has also been to new zealand for volintary orders. " it seems officer ----- is not serious about his job here, and should seek other employement"

Well if he is voluntarily going to New Zealand to train or whatever how can he be real serious about his job?

 

[fozzy2]

Well if he is voluntarily going to New Zealand to train or whatever how can he be real serious about his job?

The law protects servicemembers who volunteer to go on duty just as much as ones who are involuntarily recalled. In part, this is a recognition that volunteering is often a way of minimizing hassle (for both government and soldier) and perhaps an alternative to involuntary recall.
For example, "If you volunteer for a month in New Zealand, we won't order you to 4 months in Afghanistan" or whatever.

After all, one could extend the argument to "If he is in the reserves/guard, then how can he be real serious about his job?" Allowing that rationale would be very adverse to recruiting and retention.

The law makes no distinctions as to *how* you got on active duty, by choice or by chance, or whether you are glad or sad to go. If you do go active, the law protects you.

 

[thepenster060]

clearly crazy, you know nothing about military law or userra.
fozzy thank you. you took the words right out of my mouth

 

[unidentifiable]

my 2cents

I am very surprised that his Union would allow the employer to "bulldoze" him like that. This is way out of the ordinary for a Union shop. I would file greivance through the Union Steward and simultaneously report the employer to my State Attorney General.

 

[Crazed98]

clearly crazy, you know nothing about military law or userra.
fozzy thank you. you took the words right out of my mouth

From your first post you made it seem like your husband's employer is evil and is trying to fire your husband. The employer cannot just fire your husband he is protected.

But the review is how the employer's sees the situation. If the employer sees your husband as volenteering to get out of working and going to New Zealand to train, there's not much you can do about that.

Do you really think trying to sue the employer will make everything better?

Did your husband ever go to the employer and explain his situation?