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A Federal Court Just Revived a Naval Reservist’s USERRA Lawsuit Based on a Lack of Military Leave Pay: What It May Mean for You Here in New Jersey

Members of the uniformed services and the reserves provide an invaluable sacrifice for their country. One way that the country “pays back” its uniformed servicemembers is by ensuring that they are given a “fair shake” at their civilian jobs and not discriminated against due to their military status. That is true under both federal law and New Jersey law. If your employer has mistreated you because of your military status, you may be entitled to a judgment or settlement and substantial compensation. Reach out right away to a knowledgeable New Jersey military status discrimination lawyer to find out more about the actions you can take.

A very recent military leave ruling by the Third Circuit Court of Appeals (whose rulings directly control federal lawsuits in New Jersey, Pennsylvania, and Delaware), represents a significant victory for all uniformed service members in New Jersey.

The plaintiff, G.T., was a Petty Officer, First Class in the U.S. Navy and Naval Reserve for two decades, from 1990 to 2010.  In 1996, he began a job as a courier with a major shipping company. Military reservists are required to participate in monthly “drill,” which is one weekend per month. They also are obligated to complete annual training, which is two weeks per year.

In 2006, 2007, and 2009, the petty officer took periods of leave from work, each one lasting two weeks, to fulfill his annual training responsibilities as a member of the reserves. He also took several shorter periods of leave each year from 2004 to 2010. He was never paid for any of these leaves.

That, by itself, might not have been a problem. The law doesn’t require an employer to pay its reservist employees for the leaves they take to complete their reserve obligations.

Compare and Contrast: Which One of These is Different?

The law does, however, bar employers from treating employers less favorably because of their military status. G.T.’s employer provided paid leave to its employees for a variety of obligations or situations. It had paid health/illness leave. It had paid bereavement leave. It had paid jury duty leave. It did not have paid military duty leave. That potentially was a problem.

Federal law, under a statute called the Uniformed Services Employment and Reemployment Act (USERRA), says that, when at a civilian job, members of the military and the reserves are “entitled to such other rights and benefits… as are generally provided by the employer… to employees having similar seniority, status, and pay.”

Essentially, what this federal law requires is just what any service member wants: to be treated comparably to other similarly situated non-military coworkers; no better and no less. To determine if a violation occurred, one must analyze and compare (or contrast) employees who are or were members of the uniformed services versus those employees who are/were not. If the latter group receives anything that amounts to an employment benefit that the former does not, then that is a possible violation of the law.

This employer’s policies conceivably amounted to that kind of violation. As the Third Circuit court explained it, when the employer “pays employees who take non-military leaves for jury duty, bereavement, and health,” but not for military reserve obligations, it puts “employees taking leave for military service at a disadvantage.”

Earlier this year, the Seventh Circuit Court of Appeals, whose rulings guide federal cases in three midwestern states (Illinois, Indiana, and Wisconsin) reached a very similar outcome for largely similar reasons. The court concluded that treating workers taking jury duty leave and workers taking military leave was arguably a violation of USERRA.

This reservist worked in southeast Pennsylvania. Here in New Jersey, members of the uniformed services have even more robust protections under the law. In addition to the protections of USERRA, they also have the New Jersey Law Against Discrimination (NJLAD). The NJLAD says that military status is a protected status and bars discrimination when it comes to “hiring, reemployment, retention, promotion, or any benefit of employment,” according to the state Attorney General’s Office.
Under the safeguards afforded by the NJLAD, your employer can’t fire you for taking leave to meet your military reserve obligations if that same employer routinely allows non-military employees to take similar leaves of absence for other reasons.

As a member of the military or military reserves, you have already given much to your country. One thing you should not have to sacrifice is receiving equal treatment in your civilian job. If you have encountered that kind of unfair treatment, get in touch with the skilled New Jersey military status discrimination attorneys at Phillips & Associates to get the reliable advice and advocacy you deserve. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation.

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