GeekDiver:
...Once he informed his Mgr that he was joining and asked to get off early his Mgr then informed him he was fired. The reason his mgr gave was is that they needed people they could count on to be available to work and that his reserve commitment would interfere with work.
...Yes. I asked again your Mrg told you he was firing you because you joining up his replied again was Yes he told me I was fired because I joined the Reserves.
I hear your outrage and as a Vet myself I too feel it. Been there, done that, lost the job. Product manager for large company, went away for 2 weeks Annual Training and was not allowed to re-engage in my job upon my return. Employment terminated two weeks after my return. Reason given You learned you job better and faster than we thought you would (had been on job 30 days before AT) and I have been trying to think of a reason I could give you. Best I can tell you is you are just too disciplined Of course this was years before 9-11, and I just moved on with my life.
Unfortunately timing is everything. It can (and probably will) be argued that because your son (here after called HE) was fired BEFORE he swore in at MEPS, he is not at the time of his termination a member of the National Guard, Reserves or Armed Forces of any kind. He is just a civilian who has unexpectedly asked for time off on short notice from his job so he can go and accept another part time position. Now the question will be does the below come into play? Note the use of the word prospective employer and specifically sites or apply to be a member of a uniformed service.
To quote from a section of the statue:
Prohibition Of Discrimination Or Reprisal
USERRA provides that an employer or a prospective employer cannot deny you initial employment, reemployment, retention in employment, promotion, or any benefit of employment because you are a member of, apply to be a member of, or have been a member of a uniformed service or because you perform, have performed, apply to perform, or have an obligation to perform service in the uniformed services. [Section 4311(a)] USERRA also provides that it is unlawful for an employer to discriminate against you or to take any adverse employment action against you because you take an action to enforce rights under USERRA, for yourself or anyone else, because you have testified in or assisted a USERRA investigation, or because you have exercised any right under USERRA. [Section 4311(c)] This provision was included because there have been cases wherein employers have fired witnesses who have provided information to the Department of Labor or who testified in VRR cases.
If one of the above protected activities (service in the uniformed services, etc.) was a motivating factor (not necessarily the only factor) in an adverse action taken against you by an employer or a prospective employer, such action is unlawful unless the employer can prove (not just say) that the action would have been taken even in the absence of the protected activity. [Section 4311(b)] This provision overrules Sawyer v. Swift & Co., 836 F.2d 1257 (10th Cir. 1988), a VRR case which held that to prove a violation of Section 4301(b)(3) of the VRR law it was necessary to establish that an employee's firing was motivated solely by his or her military obligations.
http://www.jagcnet.army.mil/JAGCNET...3e164b2308f7dee6852568ad00205ee4?OpenDocument.
Unfortunately I am hearing more and more from both Reservist and National Guard soldiers that they are job hunting and in the 2nd or 3rd interview the question will be asked "do you have any Reserve or National Guard Obligation?" when they reply in the affirmative, they can feel the chill come on the interview and it is effectively over. Just take heart in knowing that the Reserves and National Guard are a tight family and we have come to understand this type of prejudice behavior. We do take care of our own and the Reserve Unit to which he is assigned will fall in, unofficially of course, as brothers and sisters in arms to help him locate other employment, often with a current or former member of the Armed Services.
The Disclaimer: The above is not legal advice, or even good advice but constitutes only my humble (ok, so its not so humble) opinion and should not relied upon in any manner. Author is not an attorney or other informed individual and may not even be sane (heck I dive dont I). Just my two cents.
32 years and counting. :bigun2:
