SYRACUSE — On Columbus Day, the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) celebrated its 20th anniversary, but the fight for employment rights for those who serve our country is far from over, according to one Syracuse law firm that specializes in USERRA cases. Mathew Tully, founding partner, formed Tully Rinckey PLLC, […]
SYRACUSE — On Columbus Day, the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) celebrated its 20th anniversary, but the fight for employment rights for those who serve our country is far from over, according to one Syracuse law firm that specializes in USERRA cases.
Mathew Tully, founding partner, formed Tully Rinckey PLLC, to handle such cases after his own experiences with unfair employment practices while serving in the National Guard. It was after winning the case against his employer for improperly giving him poor performance reviews while he was on active duty with the Guard that Tully attended law school and set out to help others facing similar situations.
Tully Rinckey is an Albany–based law firm that also operates a Syracuse office at 507 Plum St.
USERRA establishes basic rights for service members to protect them from discrimination, to insure they are reinstated to the same pre-activation position, that they receive the same benefits as though there was no interruption in employment, and protects them from retaliation. USERRA protects reserve service members who did not receive dishonorable discharge or bad-conduct discharge and met satisfy pre- and post-employment employer notification requirements. The goal is to protect the civilian employment of non-full-time military service members.
“The vast majority of violations are unintentional violations of the law,” Tully says. However, there is no denying that unintentional or not, there has been a dramatic increase in USERRA violations since the Sept. 11, 2001, terrorist attacks. That’s because there was a surge in enlistment in the National Guard and other reserve components of the military.
Protection for members of the military dates back to World War II, Tully says. The intent was to protect those going off to fight the war from having to fight to regain their jobs when they returned, he says. “People should not be worried about their job if they go to war,” Tully says.
The problem currently is that there is a lack of awareness of USERRA and the rights it protects, he notes. In many cases, employers just don’t realize they are violating USERRA. One example is an employer that eliminates job applicants who indicate they are National Guard members from consideration for an open position, Tully says. The employer may think it is simply avoiding any headaches that may arise from having an employee deployed for active duty, but the law states that employees may not be discriminated against for military service.
While such unintentional violations happen often, Tully says he is also seeing more and more cases of willful violation. His firm recently represented a Jamestown police officer who successfully fought to have the way his vacation time was accrued so that it included his deployed years as part of his active employment. His employer had argued that those years did not count against the vacation-accrual schedule since he was not actively employed at that time.
“He was supposed to be treated as though he never left,” Tully says.
Tully estimates anywhere from 30 percent to 40 percent of USERRA cases are intentional violations.
With so many human-resources rules and regulations, he concedes it can be very difficult for both employers and employees to stay on top of it all. “It’s difficult for people to be aware of all the USERRA rights,” he says.
About 85 percent of his cases are settled with a demand letter to the employer, Tully says, but the real solution is to raise awareness of USERRA.
Employers can also reach out to the U.S. Department of Labor’s Veterans Employment and Training Services (VETS) program for information. “Their job is to go out there and provide education and support to employers,” Tully says.
Information and guidance is also available through the Defense Department’s Employer Support of the Guard and Reserve (or ESGR) office, which has a committee in each state.
In addition to Albany and Syracuse, Tully Rinckey also has locations in Buffalo; Rochester; Washington, D.C.; Arlington, Va.; and in September, opened an office in San Diego, Calif.
Tully Rinckey’s practice areas include family and matrimonial law, criminal defense, labor and employment law, personal injury, estate planning, Social Security law, bankruptcy, military law, and appellate law.
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