Have I Been Harmed?
How do I know whether I have rights under USERRA?
Each situation is different. Just because your experience does not match the scenarios set out below does not mean that you do or do not have a case.
(1) The “proximity in time” scenario.
You are a member of the Army National Guard. You get orders deploying you to Iraq. You tell your boss of your deployment. Two weeks later you get fired.
(2) The “you’ve returned home but you can’t get your job back because of the economy” scenario.
Prior to deploying to Afghanistan with the Air Force Reserves you were a mid-level account manager responsible for a $500,000 budget and in charge of 5 employees. You deploy. You return to work but end up managing a $100,000 budget and supervising no-one.
(3) The “we just don’t like you because you’re gone too much doing military stuff” scenario.
You are a member of the Navy Reserves. You like to volunteer for extra duty, extra training, and extra missions. Doing so irks your boss. Your boss proceeds to make fun of you or belittle you in front of your peers because of your service.
(4) The “welcome home you’re fired” scenario.
You return home from Kosovo after having served there for five months. You complete your shift and are leaving to work when your boss approaches you and says “We’re letting you go.”
(5) The “retirement plan” scenario.
Your employer has a retirement plan in which it contributes a certain amount of money each month. Your deploy, serve, and return home to find out that your employer did not contribute to your retirement account in your absence.
How does the legal process work?
Once you meet with an attorney he or she will help you in determining whether you have a case. If it is determined that you have a USERRA case then your lawyer will usually begin the process by writing a demand letter to your (current or former – it depends upon the case) employer. The demand letter generally sets out the basis of your grievance and asks for relief. Your employer may or may not agree to the demand letter and resolve the issue.
If your employer does not agree to resolve the issue then your lawyer will file a law suit. Your lawyer files the lawsuit by serving a “Summons and Complaint” on your employer. The Complaint is a piece of paper that sets out, among other things, the wrongdoings that you believe your employer did to you.
The employer then files what is called an “Answer” where the employer generally denies that it did anything wrong. Once the Answer is filed the “discovery” process begins. During “discovery” you, through your attorney, are able to have your employer produce documents, answer written questions, and admit to certain facts under oath. Your employer can (and will) also require you to answer questions, produce documents, and admit certain facts. The “discovery” process also includes events called depositions. Depositions involved being placed under oath by a court reporter.
Once you are placed under oath your employer’s attorney gets to ask you questions while the court reporter writes down the dialogue. Your lawyer also gets to depose your boss and others. Toward the end of the litigation process your employer will generally try to get your case dismissed by filing what is called a “motion for summary judgment.” A “motion for summary judgment” is a mechanism where a judge, as opposed to a jury, can determine that no facts are in dispute and that, as a matter of law, your case should be dismissed. When faced with a “motion for summary judgment” your lawyer will argue that there are disputes as to whether your military service played a part in the adverse actions your employer took against your. Conversely, your attorney may also move for summary judgment if the situation dictates. If you “survive” your employer’s motion for summary judgment then the case usually, but not always, settles. If the case does not settle then you will proceed to try your case before a judge and possibly a jury.
What if I can’t afford an attorney?
Many lawyers take employment discrimination cases on what are called “contingency fee agreements.” A “contingency fee agreement” means that the lawyer does not recover his or her fees unless you win at trial or the case settles. Most “contingency fee agreements” do, however, require that you pay what are called “costs.” “Costs” are the expenses associated with, among other things, hiring an economist to calculate lost wages, paying the court reporter to transcribe the deposition, and expenses associated with travel. If you cannot afford costs then your lawyer may advance them for you.
The US Department of Justice (DOJ) does take a small number of USERRA cases. If you are interested in that option then you should contact the US Department of Labor – VETS.