Iraq Veteran Excluded from Hiring List May Have USERRA Claim

March 2, 2014

Individuals who sign up for the military are prepared to make significant sacrifices to defend our country. However, losing your job or being denied an employment opportunity as the result of your dedication should not be one of them. National guard member and members in the reserves face particular difficulties since they are typically called up at a moments notice. In order to protect military service members Congress enacted federal law – the Uniformed Services Employment and Reemployment Rights Act (USERRA) – that specifically provides that military personnel must be able to return to their jobs when they come back from service. USERRA also makes it illegal to discriminate based on an employee – or prospective employee’s – military service.

If you are in the military and have questions about your employment rights, it’s a good idea to consult with an experienced Georgia USERRA lawyer right away.

A recent case looked at the application of this law in real life – specifically whether a National Guard member had a reinstatement claim. In Dorris v. TXD Services, the Guard returned from active duty in Iraq to find that his employer had sold the business in his absence, but failed to include his name on the employee list to the new owner.

The court looked at whether this set of facts is enough to support a military services discrimination act complaint. It determined that while the worker might not have a claim against his employer who was no longer in business and didn’t employ anyone, he might have a claim based on the company’s failure to include his name on a list of current employees that it supplied in February 2008—while he was in Iraq—to the new company that purchased the business and hired the former employees to continue drilling. Further, whether the guard “quit” to go on active military duty, or was fired for being on duty, didn’t matter.

Evidence also showed that the new company hired most, if not all, of the employees after the sale, which shows a definite hiring preference for current employees. By not including the National Guard on the list, he was denied this benefit. A question remained whether anyone else who was on leave was also not included on the list. However, the employer has the burden to prove that others were left off the list and there was no bias against the guard based on his military service.

If you have questions about your employment rights before o after you return from military duty please consult the top Georgia employment lawyers at The Buckley Law Firm, LLC for an immediate consultation.