Military Status Discrimination

It is unfortunate that the men and women who serve or have served in America’s armed forces can face discrimination by employers at home. While discrimination against veterans and members of the military is not a new phenomenon, in recent years the federal government has strengthened workplace discrimination protections for service members, and most states now recognize military status as a protected category in state employment discrimination laws.

The Uniformed Services Employment and Reemployment Rights Act (USERRA), enacted in 1994, provides significant federal protections to veterans and members of the uniformed services. The USERRA prohibits adverse employment actions based on an employee’s status as a veteran or member of the armed forces. Adverse actions under the USERRA can take many forms, including being fired or laid off, being forced to resign, being demoted, being underpaid in comparison to similar coworkers, being harassed, or subjected to a hostile work environment. Any of these actions, if done with a discriminatory purpose, can constitute improper discrimination. The USERRA applies to both government and private-sector employers, and to both voluntary and involuntary service.

The USERRA provides additional protections to veterans, reservists, and members of the National Guard. Former and part-time members of the uniformed services are entitled to be re-employed at the same or comparable position after returning from training or service. This period of absence generally must not exceed five years. Advance notice must be given to the employer, and the employee must return to work or apply for re-employment promptly after the conclusion of service. The USERRA also protects the right to receive employer-sponsored health insurance while deployed for up to two years.

Other federal laws provide rights to members of the armed forces. The Family and Medical Leave Act (FMLA) provides that qualifying employees can take up to 26 weeks off work per year to care for a seriously injured spouse or next of kin who suffered injury in the line of duty. The FMLA also provides what is called Qualifying Exigency Leave, which allows qualifying employees to take up to 12 weeks off of work because a spouse, child, or parent in the National Guard or Reserves is deployed. Employment discrimination against disabled veterans is prohibited by the Vietnam Era Veterans Readjustment Assistance Act. Discrimination based on a real or perceived disability can also be prohibited by the Americans with Disability Act and state laws.

In addition to protections provided by federal law, state laws generally provide additional protection to members of the armed forces. The New Jersey State Policy Prohibiting Discrimination in the Workplace prohibits employment discrimination based on “liability for service in the Armed Forces . . .” which is interpreted to mean discrimination based on military status. New York’s Human Rights Law provides that employment discrimination based on military status is an unlawful discriminatory practice.

If you believe you have been discriminated against based on military status, it is important to contact an experienced New Jersey or New York military status discrimination attorney. At Resnick Law Group, PC we have extensive experience in employment discrimination cases, and will give individualized attention to your military status discrimination claim. We have offices in both New York and New Jersey. For a confidential consultation, call our New Jersey office at (973) 781-1204, or our New York office at (646) 867-7997.

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