ghilis101

Hello,

I just recently spoke with a buddy of mine who had one of his fellow employees receive a really bad job perfomance rating. This person is a military reservist, working for a large aerospace corporation. Both military and civilian jobs are non aviation jobs. Anyway in the job performance report it cited that the military reservist picked a bad time to go on military leave (voluntary for training).

This is obviously discrimination, but I cant find anything in formal writing when I look up USERRA laws. Can anyone point me in the right direction to help this individual out with something in writing that they can refute their performance report with? thanks...

sigtauenus

No help here on USERRA laws, but I would make sure he gets a copy of the performance rating with that comment on it. If he refutes it and they make the change, it could just as easily go "well, you don't suck because of the military leave thing, your suck because of ..." He's going to want a paper trail documenting this if he wants to take this far enough to fight it or bring in a lawyer.

navigatro

I am not an expert, but have had formal USERRA training.

Sigtauenus makes a good point about how easy it would be for the employer to change the negative evaluation to something else. I agree with the recommendation to DOCUMENT EVERYTHING, and maintain a low profile.

That being said, USERRA protect employees against negative actions based on military service.

I would recommend speaking with the Labor Department, Veterans Employment and Training Service, about this situation. They can give advice, mediate your situation, or refer it to the Justice Department for legal action. I have personally worked with the Labor Dep't in a USERRA case, and found them to be extremely helpful.

If you are denied promotion, pay raise, or any other benefit, then it seems that there would be a USERRA violation, and you could file a complaint. There may actually have to be "damages" prior to there being a violation. This would be a question for the Labor Department.

If you plan to leave this employer, then you would want to have this removed from your personnel file.

Good Luck

rickair7777

Yeah, Nav has good advice. If you make an issue of that, it will antagonize them, and they will just make up other reasons for the bad performance.

I would be inclined to give them enough rope (paper trail) to hang themselves, and then throw the flag when and if the adverse report becomes an issue for a promotion or raise. That way you have them right where you want them, but you don't have to create a stir if the report never becomes a problem. If you can get an adverse performance report every time you go on AT, you pretty much own that company.

If you let enough time pass, they cannot go back and "amend" the report after the fact (keep copies!).

Obviously if you seek other employment you would want to have that report thrown out at that time.

The simplest way to confront the company when the time comes is to hire a lawyer who does reserve/employment issues...when confronted by a real attorney who has an airtight case, they will cooperate VERY quickly. A certified letter followed up by a few phone calls should do the trick, and it won't cost that much. Usually companies do stupid stuff like this because they are ignorant of the law, and they think they arre entitled to harrass you for your military service...when they consult their own lawyer and find out how badly they screwed up, they will be worried about getting PERSONALLY sued, and will be falling all over themselves to fix the problem.

You can also go through the ESGR or chain of command, but these folks don't have the horsepower and things could take longer...you might end up needing an attorney anyway.

ghilis101

ok cool thanks. i really dont think the company itself is looking for trouble. This is a huge aerospace company (huge is an understatement) that gets almost all of its business from the govt, and they hire a ton of ex military. I just think that this person's supervisor is a jackass and doesnt understand the concept of reservists having to go out and do their jobs. I was hoping there was an explicit way to help, but it kind of seems like this person has their hands tied since any action is likely to cause some sort of scene

rickair7777

L.M. ? This would not be the first time I've heard about reservists having issues with them. Not by a long shot.

Bubba

DOCUMENT EVERYTHING! I apologize for yelling, but if you are having a problem with your barely high school educated, incompetent, numb nuts, wrap themselves in the American flag when it is convenient, immediate supervisor about your participation in the Guard or Reserves start carrying a steno pad to work. Write EVERYTHING down, formal and informal performance discussions and daily conversations to include date, time, and people present. “Please excuse me, but I just want to make a few notes for myself” make it obvious that you are keeping notes. If an individual has performance issues, your supervisor has the obligation to conduct “performance counseling”, they should advise you of your performance issues and outline what and how you need to improve. You should never have a situation where an end of the year rating identifies performance discrepancies that had never been addressed during the rating cycle. There are far too many fair weather patriots in management, but you can make them squirm. Make sure that you are doing your job; provide them a copy of your Drill schedule and Annual Training dates in a timely fashion.
Google USERRA (Uniformed Services Employment and Re-employment Rights Act), lots of good stuff, know your rights.

ghilis101

haha I was trying to keep it anonymous, but yes its LM

sigtauenus

Hmm, in that case, I think I know exactly who you are talking about.

SaltyDog

Have your buddy keep a copy and the original of the quoted reason for poor performance. It is worth a lot of money!!!
Here is the statute: http://www.usdoj.gov/crt/military/statute.htm or http://www.esgr.org/files/userra.pdf
UNIFORMED SERVICES EMPLOYMENT
AND
REEMPLOYMENT RIGHTS ACT OF 1994
USERRA is a federal statute that protects servicemembers’ and veterans’ civilian employment rights. Among other things, under certain conditions, USERRA requires employers to put individuals back to work in their civilian jobs after military service. USERRA also protects servicemembers from discrimination in the workplace based on their military service or affiliation.

SUBCHAPTER I--GENERAL

§ 4301. Purposes; sense of Congress

(a) The purposes of this chapter are--

(1) to encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service;

(2) to minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for the prompt reemployment of such persons upon their completion of such service; and

(3) to prohibit discrimination against persons because of their service in the uniformed services.

and then

SUBCHAPTER II--EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS; PROHIBITIONS

§ 4311. Discrimination against persons who serve in the uniformed services and acts of reprisal prohibited

(a) A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.

(b) An employer may not discriminate in employment against or take any adverse employment action against any person because such person (1) has taken an action to enforce a protection afforded any person under this chapter, (2) has testified or otherwise made a statement in or in connection with any proceeding under this chapter, (3) has assisted or otherwise participated in an investigation under this chapter, or (4) has exercised a right provided for in this chapter. The prohibition in this subsection shall apply with respect to a person regardless of whether that person has performed service in the uniformed services.

(c) An employer shall be considered to have engaged in actions prohibited-

(1) under subsection (a), if the person's membership, application for membership, service, application for service, or obligation for service in the uniformed services is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service; or ..


Looks like LM is violating these statutes.
For a beneficial read http://www.roa.org/site/PageServer?p...law_review_197 on the complaint process.

One of the best sites everyone here should peruse: http://www.roa.org/site/PageServer?p...eview_index#18 and http://www.roa.org/site/PageServer?p...review_archive

1. Recommend they do not go straight to Department of Labor- Veterans Employment and Training Service (DOL-VETS), the enforcement arm. If the DOL wants to sue, it goes to Department of Justice (DOJ). Smart employers avoid this like the plague, especially now.

First attempt to resolve with the Employer Support of the Guard and Reserve (ESGR) http://www.esgr.net/
A DOD organization that works to "mediate" and educate employers. They have a program that I am sure LM has signed that says they will go "above and beyond", it is voluntary, but carries big weight (especially if they have Federal govt. contracts) . Read about it here: http://esgr.org/resources.asp?p=sosprogram

Go here for ESGR support: http://www.esgr.net/forms.asp?p=complaintrequest

2. If that fails to work, then file the DOL complaint with the VETS office in the state of residence (ESGR can help) http://www.dol.gov/vets/

3. Enjoy the settlement.

Any questions PM me.

PS. All pilots read this: http://www.roa.org/site/PageServer?p...aw_review_0762