Is it a violation of USERRA if my civilian job demoted me during ADOS and cut my hours when I got back?

SPC Private RallyPoint Member — Wed, 05 Oct 2016 11:31:01 -0400

Response by SPC Private RallyPoint Member made Oct 5 at 2016 11:34 AM

SPC Private RallyPoint Member — Wed, 05 Oct 2016 11:34:38 -0400

I have copies of all of my orders for ADOS, AT, and Drill Weekends and give them as advanced notice as I am able. When I left for ADOS I gave them a memo, copy of orders, and a notation in the day off log at work. I get back and I am not on the Manager Roster, I'm on the Crew Roster and my hours were cut to 15.5 for the week. On the day of my first shift back they called me and cancelled my shift so now I'm at 11.5 for the week.

Is this okay? Is this a violation of USERRA?

I'm looking for a new job anyway but I have bills to pay in the mean time.

Response by PO1 Private RallyPoint Member made Oct 5 at 2016 12:55 PM

PO1 Private RallyPoint Member — Wed, 05 Oct 2016 12:55:52 -0400

When you return to work you are supposed to have the same position or equivalent and no loss of seniority. Sounds like they are trying to get you to quit because if they terminate you it's a guaranteed violation of USERRA. Cutting hours isn't a violation but being demoted is. If you are going to pursue USERRA then make sure you have all documentation and stay on top of it.

If you ever decide to move to MN look me up. I'll hire you in a heart beat.

Response by SGM Mikel Dawson made Oct 5 at 2016 12:56 PM

SGM Mikel Dawson — Wed, 05 Oct 2016 12:56:47 -0400

I know they must give you your position back, but I've never read about getting the same amount of hours again.
I had a company not give me my job back once. I went to the Veterans Reemployment Rights. They took the telephone numbers and such. Early the next morning I received a call from the company VP requesting my presents. The trucking firm I worked for hauled a lot of government goods and they could have lost all their government contracts. I was told to report to work the following Monday, the VP insured I also had a couple extra week days to take care of business. He understood where his bread was buttered.

Response by 1SG Private RallyPoint Member made Oct 5 at 2016 2:07 PM

1SG Private RallyPoint Member — Wed, 05 Oct 2016 14:07:44 -0400

Depends.
Your employer is obligated to allow you to attend drills and AT, with proper notification. They are also required to hold your position or a "like" position for you to return to post-deployment.
ADOS however is sometimes neither of those protected sets of orders. If it was CO-ADOS (Support for contingency operations) you are likely protected; if it was ADOS-HSS (home station support) it may well not be protected by USERRA.
Check out the ESGR site for an ombudsman to help you determine your rights.
http://www.esgr.mil/USERRA/USERRA-Contact.aspx

Employer Support of the Guard and Reserve USERRA USERRA Contact

ESGR informs and educates Service members and their civilian employers regarding their rights and responsibilities governed by the Uniformed Services Employment Reemployment Rights Act (USERRA). ESGR does not enforce USERRA, but serves as a free resource for employers and Service members.

Response by SGT Dave Tracy made Oct 5 at 2016 5:23 PM

SGT Dave Tracy — Wed, 05 Oct 2016 17:23:14 -0400

On the face of it, it sounds like they violated USERRA. And most of us in the Reserves and NG either have been worked over by employers in violation of the law or know someone who has. That said, it's much easier to "know" something, than it is to "prove" it.

Good luck.

Response by SPC Private RallyPoint Member made Oct 5 at 2016 9:30 PM

SPC Private RallyPoint Member — Wed, 05 Oct 2016 21:30:55 -0400

I have an update on the situation.

I was going to be demoted and kept at the same rate of pay after the demotion, however I ended up in a meeting with the District Manager and my General Manager and I was not demoted. I will be evaluated in 2-3 weeks to determine if my skills and work ethic are in line with being part of the management team. If the DM decides they are then nothing changes, if they are not then I am demoted and keep my rate of pay.

Nothing in the meeting guaranteed hours, prior to this meeting as I understand the DM had a meeting with HR. So I'm assuming that he met with HR or HR contacted him about this because I wasn't tracking that he was even going to be at the meeting about my hours and demotion.

Thank you for all of your advice and support, and good fortune to you, your families, and in everything that you pursue.

Response by CAPT Kevin B. made Oct 6 at 2016 1:11 AM

CAPT Kevin B. — Thu, 06 Oct 2016 01:11:26 -0400

If it is, the real problem is in getting DoJ to take it on. Their performance in enforcement in this area is abysmal. I had a recalled SM fired while on AD and his letter stated he was fired because he was a Reservist. DoJ didn't bite on that either. Good luck.

Response by SSG Thomas Trutt made Jan 8 at 2019 8:59 AM

SSG Thomas Trutt — Tue, 08 Jan 2019 08:59:08 -0500

There's a lot of rules regarding this, you have to be given a position that not only has the same pay but equivalent duties and responsibilities. However, if the company did something that was company wide versus specific to you, it's covered. For example, if they got rid of all IT positions and started using contractors they do not have to give you a similar position.

You could have a case here, or you could not, your first stop should be to a lawyer specializing in employment law. USERRA itself is pretty ineffective from what I've seen, but that doesn't mean there aren't dozens of lawyers willing to help you file a lawsuit on your own.

That said, the first step should probably be to go to your boss, your company HR, and your union rep if you have one and see if the issue can be resolved at the lowest level. Don't threaten, just bring up the facts, and document everything that's said with recordings if possible or get written statements. That way if you do need to go to court you have evidence. Also, regardless of what happens here - I'd start looking for a new job, because if your company pulls some shady stuff like this on a Soldier, imagine what it will be like to work there without employment protection.

Response by Sgt Mathew Meyer made Jul 16 at 2023 1:06 PM

Sgt Mathew Meyer — Sun, 16 Jul 2023 13:06:50 -0400

ESGR Ombudsman Director/ESGR National Trainer/Attorney here.
There simply is not enough information here. The question is whether you would have been demoted and had your hours cut had you remained continuously employed during ADOS. You may have heard of the "escalator principle," which is applied to determining your reemployment position following uniformed service. This is the position (pay, seniority, and status) you would have been reasonably certain to have attained had you remained continuously employed during your uniformed service. An escalator, by definition, may go down. So if, as a result of reorganization, layoffs, restructuring, etc., your position would have been so changed even if you remained continuously employed (and not a result of unlawful discrimination based upon your uniformed service), the reemployment position would be the demotion, unemployment, or whatever you the status would have been.
If that is NOT the case, and you were demoted and your hours cut back because they "really liked your replacement" or they didn't want to deal with your service obligations in the future, that is ILLEGAL. Note that under Section 4312, which is the reemployment section of USERRA, you do not have to prove discriminatory animus based upon your uniformed service, such as you do with Section 4311 discrimination claims. If you were entitled to the escalator position, and they instead reemployed you in a lesser position, they violated USERRA. Period.