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Old 01-31-2008 | 09:24 PM
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SaltyDog
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From: Leftof longitudinal
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Originally Posted by slipaway
I'm with Slice. I think it is sad that the burden of a protracted war is borne by so few. If this war is worth fighting, then it is natural for widespread sacrifice to exist. We are supposed to be a nation at war, not a military at war. The military didn't decide to go to war, our nation did. Sacrifice doesn't necessarily have to be in the form of military service, but something...anything.

As for reservists and the law: do your best to work with your employer, but don't be surpised if they throw you a curveball. I went overseas on a 15-month deployment. When I got back, my job of seven years was no longer mine. It had been taken over by someone else. I was offered a job, but not in the career field I had pursued for over ten years. To put it in airline terms, how about leaving your company as a pilot in good standing and coming back to a job as a ramper or maybe flight attendant? According to my USERRA representative, who is a civilian lawyer and former General in the Guard, this is totally legal under the law, so long as your pay and seniority with the company are not diminished (might not be a perfect comparison, due to airline seniority issues, but you get the point).

Sorry for the long post. Through my personal experience, however, I've come to believe that while many employers may talk a good game about supporting the troops, even a relatively minor inconvenience to their operation often reveals exactly how little of the "burden" they are willing to shoulder. And that is sad.
Slipaway,
This is long <g> The general is WRONG. You have a legitimate dispute with the VETS office at the Dept. of Labor (DOL)
USERRA says what happened to you is ILLEGAL according to U.S.C. 38 Section 4313. The seven year job was years. According to cases prosecuted, employer has to move the person who took your job. See below for actual statute language.

From the DOL http://www.dol.gov/vets/programs/userra/userra_fs.htm
"USERRA provides that returning service-members are reemployed in the job that they would have attained had they not been absent for military service (the long-standing "escalator" principle), with the same seniority, status and pay, as well as other rights and benefits determined by seniority. USERRA also requires that reasonable efforts (such as training or retraining) be made to enable returning service members to refresh or upgrade their skills to help them qualify for reemployment. The law clearly provides for alternative reemployment positions if the service member cannot qualify for the "escalator" position. USERRA also provides that while an individual is performing military service, he or she is deemed to be on a furlough or leave of absence and is entitled to the non-seniority rights accorded other individuals on non-military leaves of absence."

Read the USERRA Statutes here: http://www.usdoj.gov/crt/military/statute.htm

but focus on the facts relative to your illegal job discrimination;
§ 4313. Reemployment positions

(a) Subject to subsection (b) (in the case of any employee) and sections 4314 and 4315 (in the case of an employee of the Federal Government), a person entitled to reemployment under section 4312, upon completion of a period of service in the uniformed services, shall be promptly reemployed in a position of employment in accordance with the following order of priority:

(1) Except as provided in paragraphs (3) and (4), in the case of a person whose period of service in the uniformed services was for less than 91 days--

(A) in the position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service, the duties of which the person is qualified to perform; or

(B) in the position of employment in which the person was employed on the date of the commencement of the service in the uniformed services, only if the person is not qualified to perform the duties of the position referred to in subparagraph (A) after reasonable efforts by the employer to qualify the person.

(2) Except as provided in paragraphs (3) and (4), in the case of a person whose period of service in the uniformed services was for more than 90 days--

(A) in the position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service, or a position of like seniority, status and pay, the duties of which the person is qualified to perform; or

(B) in the position of employment in which the person was employed on the date of the commencement of the service in the uniformed services, or a position of like seniority, status and pay, the duties of which the person is qualified to perform, only if the person is not qualified to perform the duties of a position referred to in subparagraph (A) after reasonable efforts by the employer to qualify the person.

(3) In the case of a person who has a disability incurred in, or aggravated during, such service, and who (after reasonable efforts by the employer to accommodate the disability) is not qualified due to such disability to be employed in the position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service--

(A) in any other position which is equivalent in seniority, status, and pay, the duties of which the person is qualified to perform or would become qualified to perform with reasonable efforts by the employer; or

(B) if not employed under subparagraph (A), in a position which is the nearest approximation to a position referred to in subparagraph (A) in terms of seniority, status, and pay consistent with circumstances of such person's case.

(4) In the case of a person who (A) is not qualified to be employed in (I) the position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service, or (ii) in the position of employment in which such person was employed on the date of the commencement of the service in the uniform services for any reason (other than disability incurred in, or aggravated during, service in the uniformed services), and (B) cannot become qualified with reasonable efforts by the employer, in any other position which is the nearest approximation to a position referred to first in clause (A)(I) and then in clause (A)(ii) which such person is qualified to perform, with full seniority.

(b)(1) If two or more persons are entitled to reemployment under section 4312 in the same position of employment and more than one of them has reported for such reemployment, the person who left the position first shall have the prior right to reemployment in that position.

(2) Any person entitled to reemployment under section 4312 who is not reemployed in a position of employment by reason of paragraph (1) shall be entitled to be reemployed as follows:

(A) Except as provided in subparagraph (B), in any other position of employment referred to in subsection (a)(1) or (a)(2), as the case may be (in the order of priority set out in the applicable subsection), that provides a similar status and pay to a position of employment referred to in paragraph (1) of this subsection, consistent with the circumstances of such person's case, with full seniority.

(B) In the case of a person who has a disability incurred in, or aggravated during, a period of service in the uniformed services that requires reasonable efforts by the employer for the person to be able to perform the duties of the position of employment, in any other position referred to in subsection (a)(3) (in the order of priority set out in that subsection) that provides a similar status and pay to a position referred to in paragraph (1) of this subsection, consistent with circumstances of such person's case, with full seniority.


Slipaway, if you need more info, search some of my previous posts and/or post here until you can PM me. Will show you how to file a complaint with the DOL, you will win this one easily unless you were disabled or became incapable of doing the job (burden of proof is on the employer though)
Not an atty, but work liaison with ESGR (Employer Support of the Guard and Reserve) a DOD function at my airline. Have often conferred with VETS at DOL and read many court cases.
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