Joining the guard, maybe being let go by civilian employer

[pittsdriver]

I was recently hired back into the guard, had a 4 year break in service but decided to get back in to finish out my time since I had 10 years on active duty. I have not sworn in yet, in the process of getting back in. I let my civilian employer know that I would be returning to the guard part time (4 days a month) and now they posted my job online trying to fill immediately. I have not been let go, yet.. Since I am not in the guard yet do I have any protection against being fired?

Here is an excerpt from USERRA, which covers future service (note 3):

USERRA is a federal law intended to ensure that persons who serve or have served in the Armed Forces, Reserves, National Guard or other uniformed services: (1) are not disadvantaged in their civilian careers because of their service; (2) are promptly reemployed in their civilian jobs upon their return from duty; and (3) are not discriminated against in employment based on past, present, or future military service. The law is intended to encourage uniformed service so that the United States can enjoy the protection of those services, staffed by qualified people, while maintaining a balance with the needs of private and public employers who also depend on these same individuals.

Edited October 11, 2014 by pittsdriver

[nunya]

Seems pretty clear. Call your local ESGR office.

https://www.esgr.mil/USERRA/USERRA-Contact.aspx

If the employer has half a brain, a simple call from the ESGR rep will fix anything before it gets big.

[Dupe]

If the employer has half a brain, a simple call from the ESGR rep will fix anything before it gets big.

In the world of "at-will" employment, the employer has significant latitude in reasons for terminating employment. It's highly likely that the employer was smart enough to not say "we're firing Bob because he's joining the Guard" in any discoverable document.

[dvlax40]

kind of off topic, but do these protections apply if you are working in one state and a joining a guard unit in another?

[Sparky]

In the world of "at-will" employment, the employer has significant latitude in reasons for terminating employment. It's highly likely that the employer was smart enough to not say "we're firing Bob because he's joining the Guard" in any discoverable document.

The good thing is they will generally take more than what is discoverable into account. By that I mean, if the employer says they fired him for something other than that they then have to demonstrate it. for example if they say "we fired him because of poor work ethic" they will look at his history and if its been good the employer has to prove that it has degraded. I'm not a legal expert so you should definitely take this with a grain of salt and talk to the ESGR guys. We do have an airmen in our unit that's going though this with her company at the moment and so far everything has gone her way though.

That being said, there really isn't any foul for them just posting a job. Definitely make sure you keep records and note down that this posting happened at the same time as you notifying them. That way if they try to use an "overstaffed" reason in the future you can show they are trying to replace you. Not much you can do though other than talk to the legal experts unless they actually start discriminating against your or they get rid of you.

kind of off topic, but do these protections apply if you are working in one state and a joining a guard unit in another?

That's not really off topic, and yes they apply no matter where your military service is (as long as its the U.S. military). Contact the ESGR guys and they will generally be happy to explain anything you want. Also just as a side.. look into your income tax laws in your state. In some states you don't pay the income tax when you live in one state and work in another.

[dvlax40]

thanks for the tip sparky. ASU alum?

[Dupe]

I'm not a legal expert so you should definitely take this with a grain of salt and talk to the ESGR guys. We do have an airmen in our unit that's going though this with her company at the moment and so far everything has gone her way though.

What's "winning" here? The airman may get to keep her job, but she'll be resented by her employer and likely not go as far. Additionally, the firm will likely hold a negative view of those in the Guard/Reserves.

In some industries, there simply is no balance between Guard/Reserve and civilian employment. I think its better for those choosing to serve to find employment at firms/industries that support Guard/Reserve service.

[Vlnm]

Pitts,

Congrats on getting back in. As mentioned by others earlier you are protected. You were trying to do your best and informed your employer. So perhaps whoever you relayed it to in turn miscommunicated or misinterpreted the message to management, in short something was lost in translation.

ESGR is a great resource but encourage your supervisor to take part in those "boss lifts" or employer appreciation days, and diplomacy on your part can help, because they don't have a clue about how you joining the Guard is going to affect your ability to support their mission. Usually once they get it, they may not like it, but the law is the law. If you do have to get an attorney involved, there are several routes check out this Department of Labor Vet site. https://www.dol.gov/vets/programs/userra/ Yes, even federal agencies ---to read ignorant supervisors sometimes get USERRA wrong as well. Good luck!

I was recently hired back into the guard, had a 4 year break in service but decided to get back in to finish out my time since I had 10 years on active duty. I have not sworn in yet, in the process of getting back in. I let my civilian employer know that I would be returning to the guard part time (4 days a month) and now they posted my job online trying to fill immediately. I have not been let go, yet.. Since I am not in the guard yet do I have any protection against being fired?

Here is an excerpt from USERRA, which covers future service (note 3):

USERRA is a federal law intended to ensure that persons who serve or have served in the Armed Forces, Reserves, National Guard or other uniformed services: (1) are not disadvantaged in their civilian careers because of their service; (2) are promptly reemployed in their civilian jobs upon their return from duty; and (3) are not discriminated against in employment based on past, present, or future military service. The law is intended to encourage uniformed service so that the United States can enjoy the protection of those services, staffed by qualified people, while maintaining a balance with the needs of private and public employers who also depend on these same individuals.

[ANGAFRES_App]

Hey Guys - read through this thread and several others and have a few questions...

I was recently hired as a off the street civilian for UPT at a guard unit. I currently work for a Fortune 500 company and was wondering when the best time to inform them of my future service and the process for going on leave for OTS, UPT etc.

Should I wait until my package is through the NGB/ after FC1 when I get my class dates?

Thanks for any and all replies.. This site has been a great resource throughout my application process.

[Termy]

I would tell them as soon as you knew exactly when you leave for OTS, etc.  Letting them know ASAP should be better for them and you.  Congrats!

[Blue]

On 4/3/2016 at 7:07 PM, ANGAFRES_App said:

I currently work for a Fortune 500 company and was wondering when the best time to inform them of my future service and the process for going on leave for OTS, UPT etc.

Big companies should have all of their personnel policies documented somewhere, including the policies on how to handle folks that are in the ANG.  It would probably benefit you to go look on the HR website, poke around, and find what the regs are.

If you're somewhere where they have a lot of folks in the Guard/Reserve (ie a defense contractor), then it should be no issue.  If you're someplace where HR doesn't encounter this a lot, it would pay to get smart on their policies.

Edit to add: To put it another way, Big HR is typically dumb.  You have some level of protection from USERRA.  Know HR's regs, know what USERRA says, and make sure no one screws you.

Edited April 5, 2016 by Blue