Question: My husband will be deployed to Iraq with the National Guard in July. His company had a RIF (that is, a reduction in workforce) and he was the first let go though he had seniority. Can he ask if he was laid off due to his pending military obligation? If so, are they legally bound to answer honestly?
North Reading, Massachusetts
Answer: Fortunately, our country gives some pretty strong legal rights to employees who stand up for us in military service, and I think your husband may be in luck.
A federal law called the Uniformed Services Employment and Reemployment Rights Act (most people refer to it as USERRA) applies to all employees, regardless of the size of the companies they work for, and regardless of whether their employers are public or private. USERRA covers both part-time and full-time employees who are in the uniformed services, and protects them from discrimination in decisions about hiring, benefits, termination and reemployment after active duty is complete. The strongest part of USERRA is that it guarantees to almost every member of the armed forces returning from active duty A FULL YEAR of employment, with very few exceptions. It’s for this reason some employers terminate a serviceperson’s employment before their active duty starts. However, that is illegal.
My experience with members of the National Guard who are chosen for active duty is that the National Guard will give them information about USERRA, about how to file a claim for a violation of USERRA, and sometimes even give them assistance in doing so.
I’d suggest your husband consider these three steps:
? First, a certified letter to the company’s President or CEO telling him or her that he believes his pending active duty in the National Guard might have been the reason he was chosen for RIF, even though he had seniority. In his letter he should ask for both a written response and a decision to rehire him now.
? Second, a visit to the local constituent office of your local United States Congressman (or Congresswoman), explaining his problem, and requesting your Member of Congress to make a call to the employer, requesting reinstatement.
? Third, asking a local law firm – a larger one – to perform a “pro bono publico” act – that means “in the public good” – to provide assistance to your husband insisting upon reinstatement into his job. All attorneys are supposed to do some community service “pro bono publico” each year, and larger firms often have younger associates take on such positive acts, free of charge.
Could your husband’s employer lie about their true motives? Sure, especially if “spoken.” Companies are far less likely to lie in a letter, because any such letter could later be presented in court; untruths in response to a USERRA court complaint would be very risky, and for that reason, very unlikely.
Hope that helps. Thank your husband for his service on all our behalfs. I hope USERRA is “what you need” to take care of this problem. My best to you.
Best, Al Sklover
© 2009 Alan L. Sklover. Commercial uses prohibited. All rights reserved and strictly enforced.