What Are My Rights?

Both private and public employers have a responsibility to put military individuals back to work after their period of service ends. USERRA ensures that military service members’ have three main rights:

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• Not penalized in their civilian careers due to their military service;

• Promptly rehired for employment in their civilian jobs upon return from military duty; and

• Not discriminated against for past, present, or future military service.

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For employees who are service members, their employment status falls into one of five categories: (1) seeking civilian employment, (2) currently employed as a civilian, (3) preparing for military deployment, (4) away on military duty, and (5) returning from military duty. These rights extend as to whether the military service is voluntary or involuntary.

Depending on the military service member’s employment status, different parts of USERRA may apply. Throughout these five employment statuses, a military service member can experience discrimination. However, there are a few exceptions where a military service member may not be entitled to reemployment: unfavorable discharge, original job was temporary, change in employer’s circumstances makes rehiring untenable, or injury suffered by employee would create an “undue hardship” on the employer. At the Federal level, the Department of Labor and the Department of Justice handle claims that fall under USERRA.

Arizona has enacted their own version of USERRA (A.R.S. § 26-167). It prohibits an employer from refusing to hire, be prevented from being hired, or otherwise discriminating against obtaining employment because they are a member of the National Guard or absence from employment due to military orders. Additionally, the law prevents employers from attempting to dissuade employees from enlisting in state or U.S. military services by threat or physical punishment or economic damage. An employer must allow an employee who is a member of the National Guard to take leaves of absence for their involuntary military duties as well as for any trainings, camps, drills, and related exercises. Public employees may be guaranteed paid military leave pursuant to statue (A.R.S. § 38-610). The penalty for someone who violates this section is a class 2 misdemeanor (a crime) and up to 4 months in jail and $750 in fines.

If you are an active military service member and need advice about your employment situation or believe you’ve been discriminated against due to your military service status, don’t hesitate to contact our office today.

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