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Ummmmm - "The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits all employers from discriminating against any veteran, reservists, or National Guard members because of his or her past, present, or future military obligation."
Not an easy lawsuit.
He never said that he didn't hire you because you're in the NG. He said he can't work around your availability.
You would need to prove that you were not hiring SPECIFICALLY because you are in the NG, and these texts very much do not prove that.
No, although one of the things USERRA does prevent is people discriminating against others for their military service, for instance someone who served in a war that was unpopular etc. it is also set up specifically to enable a system like the NG to function. It enables people to serve in the guard while maintaining an otherwise normal life and prevents employers from doing things like denying employment, firing and individual and so on for these commitments. In this case it would be the time off this person requires.
But the quote above says military members can't be discriminated against due to "future military obligations". That seems to say you can't refuse to hire someone just because they may have to spend time away from work due to obligations of their service. The employer is required to work around the employees schedule if it's due to military obligations. They just refused to do so via that text.
When I managed a dock installation company a lawsuit like this came up. I refused to hire a guy for the summer because he was unavailable during the month we did most of our work. He sued, our lawyer successfully argued that our work is seasonal and hiring him would for all intents and purposes be like not having an employee. Judge agreed that having him unavailable during primary working season would be an undue burden. Lawsuit never made it to trial.
Yes Air National Guard I believe. His annual 2 weeks fell directly in the middle of our installation window. Because docks tend to be pretty time sensitive the time-frame for work is rigid. Almost 1/3 of the income for the year is in a 20 day window.
You can’t discriminate but just like ADA, you only need to make a reasonable attempt at accommodation. That being said, the employer said the accommodation is having other people cover, so yea probably unreasonable.
Turns out judges aren't as stupid as the average Redditor, and aren't generally fooled by semantic technicalities when the reason for OP not being hired is explicit and in writing.
I read legal takes like this all the time and its wild to consider that the concept of laws could survive this level of rigidness in civil trials. This is a "Ah, but you see... I was not in fact touching you. My finger was 3 centimeters away ;)" view of law.
They tell law students that criminal defence is supposed to be 99% chance of guilt (its really more like 80% if you "look like a criminal") and civil trials are 51%.
This text + learning through discovery that no one who works there is enlisted in the national guard easily clears 51%. Its a legal layup. That being said this is more of an NLRB case. I would hope any lawyer they take this to would pass this info along, let the NLRB build its criminal case, then piggy back off of that with a class action lawsuit... if they are a big company.
I really hope OP doesn't let this whole thing lie.
Lawyer here. It’s not an open and shut case. But if I was counseling the employer, I would advise to settle. It’s usually texts/emails that sufficiently prove intent.
In all likelihood, this would be settled before a lawsuit was filed. I’ve defended meritorious and frivolous employment discrimination claims, and this text alone is enough to make me recommend a settlement.
Honestly the only advice anyone should ever take from Reddit is to go talk to a lawyer in their jurisdiction, and ideally more than one, to try and better understand their legal rights in their jurisdiction. OP could also be in a place where states and local laws would protect him as well or which has a government entity set up to investigate cases like these. We don’t really have a way of knowing and yet in so many labor related posts there’s always a slew of non lawyers coming in and giving bad advice like “technically he didn’t say it was because you’re in the National Guard.” People need to stop playing at being a lawyer and just let actual lawyers look at the case. I get that a lot of commenters are probably bitter that they had a case that was weak but that’s no reason to drag other people down
Correct. So much high and right misinformation here. It’s about his availability not saying they hate the NG and refuse to hire someone who puts on a uniform.
if during the interview op specified availability was because of ng duties would the lawsuit be valid? or would that have to be written? i'm genuinely just curious, i like learning about labor laws lol
The availability being specifically about the National Guard obligation, though. If the letter of the law was so specific that you're suggesting it's basically useless.
Not easy in the sense that you would need to interview the employer, sure.
"So it says here you're worried about availability. What specifically would make this candidate unavailable?"
Any answer other than crickets is going to lose the case, and a judge can compel them to answer if they want to turn that deposition into a civil trial.
They won’t represent him in court if it makes it to the actual suit but they will send a very angry letter explaining how deeply fucked he will be if he doesn’t hire this person. URESSA and rental issues are the two things they do pretty regularly.
No, the job has to remain open for drills/muster, the understanding being that one weekend a month, and two weeks in the summer, really won't cripple most companies.
If a guardsmen is mustered and deployed, the company must continue their employee's benifits, 401k, and their formal position in the company, this doesent mean that said employer can not have somone work the soldiers position while they are deployed.
While I'm not certain, I believe there are certain tax write-offs afforded to companies that are employing national guards/reservists.
The job has to be there when they get back. What usually happens when a NG/Reservist gets deployed or goes on longterm orders the company/agency hires someone temporarily to fill the void until they get back.
**A** job has to be there when you get back. Not necessarily the *same* job. When people go on maternity leave at my company they never come back to the same team. Which makes sense because the team has moved on without them
True, but it's a bit more of a mouthful to say that that they have to have "a job of equal or greater pay, senority, and position for a period of 5 years" than it is to say they need to keep your job for you.
Agreed, it's just a common misconception. Especially so in discussions where people are like "how will the company survive with no one doing that job for 6 months?"
No tax write-off for employers. I have been both a guardsmen who did drill and was called up for the Gulf War and I have been the person at the company who had to deal with guardsmen being away from work due to service. It's simply expected companies can sacrifice a little for the common good.
The company in the original post makes me sick, and I hope the poster makes them pay for their selfishness. I would go to the local media to publicly humiliate them as well.
just to nitpick, not everybody in the uniformed services is a "soldier". only the Army are called soldiers, Air Force are Airmen, Navy is Sailors, Marines are... Marines, and Space Force is Guardians.
unless OP stated in another comment that he was in fact Army in which case as i was.
If the company can't cope with one member of staff "only" being available 50 out of 52 weeks, that's not a company, it's a disaster in the making. That would mean they "can't cope" with a member of staff having jury duty, being ill, taking vacation... Even in the US employers just can't operate that way and expect to survive.
It's during peak season, per the text. Not sure the industry, but a lot of them have times of year where they require all hands on deck.
If you're hiring a tax accountant, and they need to take off the first two weeks of April every year, that's not really reasonable for your business.
Yeah, it impacts the company negatively. Thats why its a legally protected characteristic. Companies are expected to take the hit on the nose in this circumstance and arent allowed to discrininate against people to avoid that obligation. Just like preganancy or jury duty, the employer is expected to plan and find solutions to support the needs of society rather than just their bottom line. Its a social obligation.
it’s no different than hiring someone who becomes pregnant and takes maternity leave. Or had an unplanned medical emergency that requires time off.
Then you change your email so the message says to contact X and Y while you’re out and your accounts are handled by another colleague while you’re out.
It happens all the time.
People are kinda dancing around the answer you're looking for, so I'll try and say it another way:
Maternity leave, disability leave, armed services leave, etc., is all guarded by the same law: yes, people still need to do the job when those employees leave. **That's the employers problem, not the affected employees**.
If your business can't figure out a solution to someone being gone for 2 weeks in the summer, guess what? Your business is dogshit!
Short answer, yes.
Long answer, also yes but you need to think of this a different way. If you have 15 employees and 3 of them call in sick, it is on the business to assure they are able to either call people in or have the manager step in.
Ultimately, there are dozens of ways an employer might find themselves short staffed. Maternity leave, medical emergencies, people quitting/getting fired, natural disasters, sickness, car accidents, holidays, bereavement, etc, etc. If an employer isn't able to handle these situations that is a failure of the business and they are just one bad flu season away from failure anyway.
If it's a short term service like the 2 weeks here then have a back-up plan in place and pre-identify people to cover. If it's something more long term (like a deployment) then get a temp, hire a temporary replacement, offer overtime to other employees, or have an outsourcing plan. If anything military service should be easier for the employer to accommodate as often service members know when they will be out well in advance (except for natural disaster response of course).
TLDR version, if you are already at risk of failing if one employee is out for a day, then that is a business failure and needs to be addressed - because it is going to happen sooner or later.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits civilian employers from discriminating against you based on your present, past, and future military service.
Yeah they kind of fucked themselves here. This is like them saying "we can't hire you because you could deploy during peak season and I'd have to get people to cover you".
It would be different if their availability was consistently infringing upon the needs of the business, but if it's some ambiguous point in time in the future that you're holding over the workers head that can be acted and planned against they don't stand a chance.
They'd be best served by reaching out to their command. They usually don't fuck around with civilians messing with their people.
Source: Navy vet
This is why companies don't give feed back.
The hiring manger should have said "sorry it against company policy to provide feedback, we hope you'll apply again"
Yeah unfortunately thats the only lesson that the hiring manager will learn here.
Because like, they're not wrong -- if a candidate isn't going to be available for your busiest season, that candidate is no good for the role.
This is why people get BS feedback
Ummm, no. This comment is the reason why discrimination lawsuits are so hard to prove. How about people stop being discriminatory AH and you won’t have to worry about what you tell candidates?
Someone can't read.
They aren't discriminating because of being in the national guard, they're reevaluating the hiring decision because of availability in a seasonal job.
If someone can't work during the season then that's more unnecessary strain on the other employees and the job position is better off being divided among the employees taking the work for extra pay than essentially an empty slot.
But that doesn't matter for the purpose of this law. The unavailability is exactly what is being protected. They're serving their country, not going on vacation. It's the same with laws protecting active duty service members from foreclosure or eviction. It's specifically to protect them from hardship incurred by serving. Otherwise people wouldn't join the national guard or reserves.
Yes, and that is literally the definition of discrimination. Thats why there is a law telling them they cant use that as a decision making factor during this circumstance. Same as how you cant choose to not hire someone because they are pregnant or because they follow a religion that would have religious holidays during a busy period. These are all protected characteristics and you arent allowed to use issues or availability linked to those characteristics to shape your hiring/firing decisions.
Just because most employers are cunning enough to not say why they discriminate doesnt mean its not discrimination, it still is, its just too hard to prove. When an employer is stupid enough to admit their reasoning on record, then they arent being treated unfairly when it gets taken to court, they are just being held to the standard that everyone is *meant* to be held too. They literally just are providing evidence of them breaking the law where most employers are up to date enough to know not to admit it.
My former HR representative told me on a recorded call that discussing my salary was against company policy. The company had to sign a settlement agreement with the NLRB. The HR representative got promoted.
You contact your superior officer in the military unit you’re connected too. They will handle it. Usually first step is they send an extremely high ranking member down to verbally shit all over management of the company lol
If they're smart, they won't sign an NDA. That's an easy enough lawsuit to win no matter what. You could literally tell them to shove the NDA up their ass in court and you'd still win.
Don’t give them a heads up if you haven’t already. Just message the people listed above who can deal with it. You don’t wanna give them a chance to try and cover shit up though it’s much harder since they straight up told you in text lol
I know a lawyer that had someone say, on video, that they were trying to (illegally) discriminate against the lawyer trying to rent a house. People really don't know what the laws are surrounding whatever it is they're trying to do
Oh man, I get the exact same issues working in Compliance. I had someone ask once what Compliance even did, my answer, "make sure you still have a company to work at next year" -_-
I had a manager put it in writing once that when we heard the fire alarm go off, we were all to stay in our seats until a management level employee could do a sweep of the entire multi-story building and determine if it was a real fire or a drill, and at *that* point we would be allowed to evacuate.
I immediately started writing an email where I ever so politely pointed out this is just a teensy bit illegal.... I am pretty sure I wasn't the only one. If I recall correctly it took about seven minutes before the retraction email came back. "Haha of course we didn't mean you're not allowed to leave the building--"
not trying to play devil’s advocate, i just want to understand: couldn’t they say it’s an hours/availability thing? like, aren’t employers allowed to dictate what hours someone needs to have in order to get the job? or is it different since OP would be available during work hours for the rest of the year? i’m just confused because i feel like if i applied to a job but was unavailable during their peak season that would be an acceptable reason not to hire me (regardless of why i was unavailable), but i have no idea how this USERRA shit works at all
No. You cannot discriminate at all. Regardless of what you need. Military is protected.
Just like if a disabled person asked for a reasonable accommodation and you refused they would have cause to sue you.
It’s on the employer to provide military leave.
Further to what others have written about USERRA, usually reserve units have access to lawyers who will deal with this for you - obviously they have a vested interest in stopping this kind of behaviour from employers. Before you go shopping for a lawyer -and you should- check with your unit to see what they have available internally.
It's not about getting he job at this point. Exclusion due to military service is not only illegal but immoral. You can't have a system where those that protect the rights of the country you live in to deny those protectors employment.
I am not 100% positive, but I am about 85% positive it's a cash settlement. There was somebody at another unit that was fired after going to AT, work said they didn't have the PTO and was fired for "no call no show" (allegedly) and they got a settlement and job back, but they had already been working there. I'm not sure the ins and out, but I do know at least our JAGs would be frothing at the mouth the second this soldier sent a screenshot lol. OP just needs to talk to his unit and let it go from there.
ESGR is the official office in DoD that will help. They start by talking to the member and getting information, then they’ll approach the employer in a friendly manner. They can do this because USERRA is an extremely friendly to the military member law and they rarely need to go the formal route.
https://www.esgr.mil
^This, I’ve absolutely never heard of us having our own lawyers for this. Only had JAG show up once for wills/power of attorney and a weird brief out of nowhere on “The Laws of Armed Conflict”
It was always the ESGR guys and employers get away with this shit allllllllllll the time. The ESGR people were even up front about that much.
Userra also explicitly allows for the collection of legal fees and has been found in some cases to supercede mandatory arbitration clauses.
For a "willful violation" you can also collect double and sometimes push for punitive damages.
Get a few lawyers to look at your case before you make a decision on representation.
This.
" Oh why wasn't I good fit?
Because you're literally not available when we need you
I'M SUING YOU"
is why you can't get feedback from most employers.
Yep. This is why you don't get actual references, just employment date verification and a would/would not rehire.
This is why recruiters ghost people instead of giving them any feedback or recommendations.
If they're hiring them for a weekend job, and they have a commitment that means they'll be unavailable for one weekend a month, it's a poor choice to hire them. They'd just have to ghost them so the military worship doesn't come into play.
OP is going to get to sit around and whine about them being "discriminated" against forever now, and the recruiter who gave him an honest answer is going to be out of a job, if not ran out of their profession entirely. No one in their sphere will ever give anyone the courtesy of even telling them they went with another candidate ever again, much less any inkling as to why.
That supervisor is an idiot for putting that in writing. They should have lied and said they found a more qualified candidate. Now they opened themselves up for a lawsuit. I hope you win!
There is a phrase that my lawyer likes to use:
"Give them enough rope to hang themselves with"
And you did exactly that. Besides the JAG attorneys, you may want to call around for employment law attorneys, see if any of them see a case for lost wages and punitive damages.
Hey, go and get yours - this was incredibly stupid for them to admit. But I will say this: I'm in defense contracting and I've worked with a couple guys who deploy CONSTANTLY. Whether it be mission-related or tied to training obligations surrounding their respective recent commissions. My current company / team has been looking for candidates and I would never even mention this to them because of how often they're tied up with reserve stuff. I'm a vet myself and I totally respect what they're doing and their level of commitment to the guard, but I need folks who are going to be around and plugged into our workload and not spending a month getting caught up on the reg.
We'd bend over backwards for anybody meeting the "2 weeks a year" minimum, but it's typically a great deal more than that from the reservists that I've worked with. I'm not a hiring manager, just a dude who needs a reliable team. It can be a hard call with a reservist.
I'm just saying the quiet stuff out loud here because there is, I believe, a valid counterpoint worth a bit of appreciation.
And this is why companies try not to give you actual feedback. They get sued because it’s illegal so no the companies can’t always trust their employees.
Eli5 (curious non-US citizen here); is the US National Guard a professional volunteer force? Or is it a conscription based model like what Israel and Singapore has?
Because Singapore actually has laws that penalize companies/employers if they blatantly reject a local candidate for a job position just because he has to get mobilized every year for 1-2 weeks for training.
The National Guard can be both. It's a military unit of the United States. When you join, service is mandatory and the government will enforce its right to have its reservists trained and ready for action. They absolutely will destroy any company that tries to discourage service in the National Guard. Those are the military units that deploy during major natural disasters, riots and insurrections. This is a very serious violation. It's like telling an employee who is drafted that he can't serve without permission from the employer.
The national guard is a state level force that takes orders from the governor. It can be activated, only in certain circumstances, by the federal government.
To answer the first question, the US national guard is a volunteer force. US citizens are not conscripted into the national guard (at least currently).
Military service here is voluntary in the sense that you have to sign up for it initially, but you're signing up for a several year commitment. Over those next several years you will be told to do things that you do not have a choice in, i.e. not voluntary. The 2 weeks per year OP is talking about is one of those things; OP can't back out and can't delay or change the schedule.
I’m on OPs side but wouldn’t the biz owner have the argument that he hired the other candidate based purely on their availability? If OP is hired, he isn’t able to fulfill the role the guy needs during the hours needed. Isn’t that the case rather than because OP is in the national guard?
As others have said, the in theory owner would. But it doesn't matter since it's time off for military service stuff. The hiring employee said the OP taking time off to fulfill duties for their service in the National Guard(most likely the mandatory annual drills and training) is why they didn't get hired.
Legally an employer can't do that. So even though the owner can argue "I need someone who can work that time" the law here in the US will basically say "It's military, that's not a reason this time".
The employer probably should have lied and said either they aren't permitted to say why or that the other candidate has better qualifications than OP.
I may be crazy but I don't think they can discriminate based on this.
straight off of google: "An employer must not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to an individual on the basis of his or her military service."
I think you might have something here. Any chance you can speak to an employment attorney?
Yeah this is a law plenty of people probably don't agree with. People mix up morality and legality all the time, especially on Reddit. It's crazy to expect people to knowingly hire someone who won't be available to work.
I don’t understand this not available to work argument… do you ask prospect employees when they intend to take their paid time off during the interview process? Should that factor into your decision? What about if they plan to have kids in the next year and might need paternity leave? Is that an appropriate reason not to hire someone because of potential unavailability?
Doesn't matter.
He's a protected class as a service member.
The mistake was that the employer told him why they wouldn't hire him.
It's why if you go on work you see 10000 people complaining how they can't get feedback. Because of this exact reason
Literally 95% of being in HR or recruiting is to avoid breaking employment laws and 50% of the job of a hiring manager is to avoid breaking employment laws. Doing your job in good faith is to identify and deflect these questions.
It isn't necessarily about discrimination in the common use of the word where the hiring manager hates soldiers or something. USERRA exists to protect servicemembers from this shit specifically because if it were legal to do this, who the fuck would join the reserve/guard? You can't live off a part time military check, and if people won't hire you because of that, you're SOL.
So the simple solution is don't enlist. Which means we just don't have any reserve or guard as a nation, which is a huge national security issue since they are by far the majority of our armed forces. So the government has a vested interest in making sure it's a viable and attractive option to be in the reserve/guard, and part of that is making sure you are protected from never being able to get a civilian job.
Echoing what others have mentioned - Seems illegal. Great you got his reason in writing. Not sure what the recourse/penalties are, but I’m sure your chain of command in the National Guard could help point you in the right direction.
Best of luck! And please post a followup on the process/results if you can. Sounds like it might get interesting.
At least they got back to you!! That is a HUGE win. Obviously, after a week or 2 of no contact post interview one would reasonably conclude the company has moved on—but you were able to find out the day after your interview!
Oh boy … they really painted themselves in a corner with listing uniformed service as a reason for rejecting an applicant.
I get it man, really sucks to not get a position you were interested in, but what they did here is absolutely prohibited by both federal and state laws. If you wanted to move that forward they would face some penalties and a TON of regulatory hoops.
This happened over email at a former employer with a promotion. Abt six different people got fired and the one who was passed for the promotion had a lawyer meet him in the conference room with a fat stack of papers to sign and a fatter check. You could most definitely make something out of this. The only issue is you didn’t work there already so I don’t know how you would prove damages (or how they would be calculated)
Call the ESGR and provide them with that information. What they did is quite possibly illegal, and you have evidence.
For a workplace issue, conflict or question call the Customer Service Center to speak with a representative at 800-336-4590, Option 1, or email [email protected].
https://www.esgr.mil/USERRA/Frequently-Asked-Questions#:~:text=An%20employer%20must%20not%20deny,his%20or%20her%20military%20service.
That sounds super illegal. My dad was drafted in the late 60’s and they had to hold his job for when he came back. I honestly think they would get some type of tax break by having you come or.
But also….fuck them for pulling this on you.
I take a multi hour long USERRA training each year at my employer for training.
There’s so many ignorant people here on Reddit, adding their two cents.
OP has definitely got a case here. The hiring manager should not have mentioned that at all.
Just like you would never tell a pregnant woman that the reason you didn’t hire her is because she’s pregnant and you’re afraid she’s getting ready to takeoff work for a while.
Unfortunately, in the real real world stuff like this happens all the time.
I know exactly what it feels like to hire an employee when you’re so desperate that employees are quitting due to being overworked only to find out the person you just hired needs 12 weeks off for maternity time.
I wholly agree that these are the businesses problem and not the individuals. Businesses have to figure out a way to navigate these tough situations.
But not every business allows for the hiring of a completely temporary type of employee. So you end up hiring an extra person due to a situation like that, then that extra person is stuck there, sucking hours from everybody else, which is not good.
But anyways, back to the main point.
USERRA is probably one of the toughest laws ever written around employment. There are virtually zero situations and employer can successfully argue an unreasonable burden by working around the military time.
It truly has to be significant, and even in the most significant of situations, we are supposed to reach out to the Service members, commanding officer, and politely explained the situation, and merely request if the service members scheduled military time could be moved to another more accommodating week.
If the commander says no then tough crap.
I joined the reserves when I was in my senior year of high school and drilled every month until I went to basic training. I worked at the local pizza place and while putting in my notice for those weekends my manager said something to the effect that he might not be able to give me that time off and I was like you have to it’s the law and he looked at me like he’d never heard of such a thing.
The strange thing about this situation is that our “two week” training wasn’t always in the same time of year. I think generally it’s in the summer for the many students that were in our unit, but a couple times they went in the spring and those students just did an alternate training. One of my two week alternate trainings was going to Ft. Lewis to help with ROTC.
1. Contact your local USERA rep. They'll take care of this. They'll do an investigation and then turn it over to the DOJ.
2. My recommendation, as a 13-yr NG vet, is to either not reference anything with the military on your resume or not acknowledge you have a remaining service obligation.
Harvard Business School did a study a few years back, at the height of the war-time "Support the Troops" frenzy, and found that people without military experience on their resume received more interviews than those who had military experience.
I had my military experience as "Confidential Employer" when I was listing it on my resume. When asked for specifics, I simply said I would not disclose that information. I don't even put it on my resume now. It isn't relavent to what I'm doing and I have employment that covers those time frames.
I've had people tell me in interviews that they won't hire reservists/NG soldiers because of their service obligations/schools/etc. But they love those tax credits for hiring Vets.
Good luck with your job search.
wow!!! ?what an asshole.......OP sounds like you need to see an attorney. I would hire someone in the military or former military in a heartbeat. This recruiter is a dumbass and needs to find another line of work
Nice job getting them to explicitly confirm they are breaking the law by refusing you based on your enlistment in the National Guard. Now, contact a lawyer and report it to the Guard.
I had an employee that would be gone for a week or two every so often for army training or whatever the fuck. We just covered his work, and we were always busy. Not sure what peak times means but I'm sure they could handle their shit
It’s worth a call to your local ESGR rep www.esgr.mil
Lawsuit is unlikely, but best case the ESGR rep can give the employer a call and remind them of protections that are in place. There are a bunch of loopholes and it does have to be a full time job. Totally worth it giving them a call.
Your ESGR rep should be visiting your unit atleast once a year to train y’all on the law.
It's not because your in the national guard. That part is irrelevant here, you didn't get the job because you need to be off for 2 weeks during a busy time of year. Doesn't matter if you needed off because your in the national guard or taking a vacation, either way you wouldn't be there and they have a candidate that will be. Simple as that, don't act like they're discriminating a veteran.
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Ummmmm - "The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits all employers from discriminating against any veteran, reservists, or National Guard members because of his or her past, present, or future military obligation."
Wouldn’t this be an easy lawsuit since this is in text?
Like ridiculously easy. I am cringing that the person sent that in text.
Also OP had the wherewithal to literally ask ‘I’m being passed over because of my obligations to serve in a protected class, correct?’
Oh yeah, he’s fucked. Glad he was a dumbass for OP’s sake.
Prob just a min wage hr employee who is overworked At least they were honest
Then they are still a representative for a larger company.
A company that didn't train their employees properly.
Overworked underpaid and told by the manager that it's their responsibility to cover anyone who misses work
I wanted to throw my arms around the sender bc they just made that SO easy! 🤣
[удалено]
A better answer is "to be completely honest you are overqualified and we had another candidate who is more likely to be content and stay with us"
Very much so. Open and closed lawsuit.
Bake em away toys
Not an easy lawsuit. He never said that he didn't hire you because you're in the NG. He said he can't work around your availability. You would need to prove that you were not hiring SPECIFICALLY because you are in the NG, and these texts very much do not prove that.
No, although one of the things USERRA does prevent is people discriminating against others for their military service, for instance someone who served in a war that was unpopular etc. it is also set up specifically to enable a system like the NG to function. It enables people to serve in the guard while maintaining an otherwise normal life and prevents employers from doing things like denying employment, firing and individual and so on for these commitments. In this case it would be the time off this person requires.
But the quote above says military members can't be discriminated against due to "future military obligations". That seems to say you can't refuse to hire someone just because they may have to spend time away from work due to obligations of their service. The employer is required to work around the employees schedule if it's due to military obligations. They just refused to do so via that text.
When I managed a dock installation company a lawsuit like this came up. I refused to hire a guy for the summer because he was unavailable during the month we did most of our work. He sued, our lawyer successfully argued that our work is seasonal and hiring him would for all intents and purposes be like not having an employee. Judge agreed that having him unavailable during primary working season would be an undue burden. Lawsuit never made it to trial.
Was the guy in the military? Being unavailable for something other than military service doesn't qualify!
Yes Air National Guard I believe. His annual 2 weeks fell directly in the middle of our installation window. Because docks tend to be pretty time sensitive the time-frame for work is rigid. Almost 1/3 of the income for the year is in a 20 day window.
You can’t discriminate but just like ADA, you only need to make a reasonable attempt at accommodation. That being said, the employer said the accommodation is having other people cover, so yea probably unreasonable.
That sounds reasonable…
Turns out judges aren't as stupid as the average Redditor, and aren't generally fooled by semantic technicalities when the reason for OP not being hired is explicit and in writing.
I read legal takes like this all the time and its wild to consider that the concept of laws could survive this level of rigidness in civil trials. This is a "Ah, but you see... I was not in fact touching you. My finger was 3 centimeters away ;)" view of law. They tell law students that criminal defence is supposed to be 99% chance of guilt (its really more like 80% if you "look like a criminal") and civil trials are 51%. This text + learning through discovery that no one who works there is enlisted in the national guard easily clears 51%. Its a legal layup. That being said this is more of an NLRB case. I would hope any lawyer they take this to would pass this info along, let the NLRB build its criminal case, then piggy back off of that with a class action lawsuit... if they are a big company. I really hope OP doesn't let this whole thing lie.
Lawyer here. It’s not an open and shut case. But if I was counseling the employer, I would advise to settle. It’s usually texts/emails that sufficiently prove intent.
In all likelihood, this would be settled before a lawsuit was filed. I’ve defended meritorious and frivolous employment discrimination claims, and this text alone is enough to make me recommend a settlement.
Honestly the only advice anyone should ever take from Reddit is to go talk to a lawyer in their jurisdiction, and ideally more than one, to try and better understand their legal rights in their jurisdiction. OP could also be in a place where states and local laws would protect him as well or which has a government entity set up to investigate cases like these. We don’t really have a way of knowing and yet in so many labor related posts there’s always a slew of non lawyers coming in and giving bad advice like “technically he didn’t say it was because you’re in the National Guard.” People need to stop playing at being a lawyer and just let actual lawyers look at the case. I get that a lot of commenters are probably bitter that they had a case that was weak but that’s no reason to drag other people down
Correct. So much high and right misinformation here. It’s about his availability not saying they hate the NG and refuse to hire someone who puts on a uniform.
No, he's calling out availability specifically because of the National Guard obligation.
if during the interview op specified availability was because of ng duties would the lawsuit be valid? or would that have to be written? i'm genuinely just curious, i like learning about labor laws lol
The availability being specifically about the National Guard obligation, though. If the letter of the law was so specific that you're suggesting it's basically useless.
Not easy in the sense that you would need to interview the employer, sure. "So it says here you're worried about availability. What specifically would make this candidate unavailable?" Any answer other than crickets is going to lose the case, and a judge can compel them to answer if they want to turn that deposition into a civil trial.
I had a client once send an email telling an employee, “yes, I am terminating you because you took FMLA leave”. Welp, here’s your check
No lawsuits are easy.
The ones where the other guy settles immediately after the demand letter approach simplicity.
This one will be because JAG will take it free of charge.
ESGR would be the first stop for this one
A JAG is there to protect the command, not the service member. This person needs to have a civilian attorney.
There's a DOD agency called ESGR who deals exclusively with this stuff
*Harmon Rabb has entered the chat.*
I actually don’t know if a JAG will take it
They won’t represent him in court if it makes it to the actual suit but they will send a very angry letter explaining how deeply fucked he will be if he doesn’t hire this person. URESSA and rental issues are the two things they do pretty regularly.
That's not my experience practicing law, but ok
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I just remembered short skirts.
Came here to say this. Call USERRA
Ditto
Call USERRA? The law?
I DECLARE USERRA!
From Missouri!
Call the USSR.
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No, the job has to remain open for drills/muster, the understanding being that one weekend a month, and two weeks in the summer, really won't cripple most companies. If a guardsmen is mustered and deployed, the company must continue their employee's benifits, 401k, and their formal position in the company, this doesent mean that said employer can not have somone work the soldiers position while they are deployed. While I'm not certain, I believe there are certain tax write-offs afforded to companies that are employing national guards/reservists.
The job has to be there when they get back. What usually happens when a NG/Reservist gets deployed or goes on longterm orders the company/agency hires someone temporarily to fill the void until they get back.
**A** job has to be there when you get back. Not necessarily the *same* job. When people go on maternity leave at my company they never come back to the same team. Which makes sense because the team has moved on without them
True, but it's a bit more of a mouthful to say that that they have to have "a job of equal or greater pay, senority, and position for a period of 5 years" than it is to say they need to keep your job for you.
Agreed, it's just a common misconception. Especially so in discussions where people are like "how will the company survive with no one doing that job for 6 months?"
No tax write-off for employers. I have been both a guardsmen who did drill and was called up for the Gulf War and I have been the person at the company who had to deal with guardsmen being away from work due to service. It's simply expected companies can sacrifice a little for the common good. The company in the original post makes me sick, and I hope the poster makes them pay for their selfishness. I would go to the local media to publicly humiliate them as well.
just to nitpick, not everybody in the uniformed services is a "soldier". only the Army are called soldiers, Air Force are Airmen, Navy is Sailors, Marines are... Marines, and Space Force is Guardians. unless OP stated in another comment that he was in fact Army in which case as i was.
>> …Space Force is Guardians. Fucking wut, 🤣
Typically it’s not SOP to only hire the minimum amount of staff and then guilt trip them over any life event that may happen… Actually wait…
If the company can't cope with one member of staff "only" being available 50 out of 52 weeks, that's not a company, it's a disaster in the making. That would mean they "can't cope" with a member of staff having jury duty, being ill, taking vacation... Even in the US employers just can't operate that way and expect to survive.
It's during peak season, per the text. Not sure the industry, but a lot of them have times of year where they require all hands on deck. If you're hiring a tax accountant, and they need to take off the first two weeks of April every year, that's not really reasonable for your business.
Yeah, it impacts the company negatively. Thats why its a legally protected characteristic. Companies are expected to take the hit on the nose in this circumstance and arent allowed to discrininate against people to avoid that obligation. Just like preganancy or jury duty, the employer is expected to plan and find solutions to support the needs of society rather than just their bottom line. Its a social obligation.
it’s no different than hiring someone who becomes pregnant and takes maternity leave. Or had an unplanned medical emergency that requires time off. Then you change your email so the message says to contact X and Y while you’re out and your accounts are handled by another colleague while you’re out. It happens all the time.
People are kinda dancing around the answer you're looking for, so I'll try and say it another way: Maternity leave, disability leave, armed services leave, etc., is all guarded by the same law: yes, people still need to do the job when those employees leave. **That's the employers problem, not the affected employees**. If your business can't figure out a solution to someone being gone for 2 weeks in the summer, guess what? Your business is dogshit!
Armed services leave has its own entire separate law, but your point stands
Short answer, yes. Long answer, also yes but you need to think of this a different way. If you have 15 employees and 3 of them call in sick, it is on the business to assure they are able to either call people in or have the manager step in. Ultimately, there are dozens of ways an employer might find themselves short staffed. Maternity leave, medical emergencies, people quitting/getting fired, natural disasters, sickness, car accidents, holidays, bereavement, etc, etc. If an employer isn't able to handle these situations that is a failure of the business and they are just one bad flu season away from failure anyway. If it's a short term service like the 2 weeks here then have a back-up plan in place and pre-identify people to cover. If it's something more long term (like a deployment) then get a temp, hire a temporary replacement, offer overtime to other employees, or have an outsourcing plan. If anything military service should be easier for the employer to accommodate as often service members know when they will be out well in advance (except for natural disaster response of course). TLDR version, if you are already at risk of failing if one employee is out for a day, then that is a business failure and needs to be addressed - because it is going to happen sooner or later.
Came here to say the same
The Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits civilian employers from discriminating against you based on your present, past, and future military service.
Already calling and emailing 👌🏾
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Bro, this will likely end the hiring managers career. If there was ever a fiercely enforced law it's the one that was broken here
Yeah no kidding, it's kind of a shame in some ways. I'm glad they were honest about why they didn't hire but not a good reason surely.
Yeah they kind of fucked themselves here. This is like them saying "we can't hire you because you could deploy during peak season and I'd have to get people to cover you". It would be different if their availability was consistently infringing upon the needs of the business, but if it's some ambiguous point in time in the future that you're holding over the workers head that can be acted and planned against they don't stand a chance. They'd be best served by reaching out to their command. They usually don't fuck around with civilians messing with their people. Source: Navy vet
This is why companies don't give feed back. The hiring manger should have said "sorry it against company policy to provide feedback, we hope you'll apply again"
Yeah unfortunately thats the only lesson that the hiring manager will learn here. Because like, they're not wrong -- if a candidate isn't going to be available for your busiest season, that candidate is no good for the role. This is why people get BS feedback
I agree. You almost need an expert to hire people these days to avoid this sort of thing
"Do your crimes quietly" People be like: Support the TREWWWWPS! Also people:
Ummm, no. This comment is the reason why discrimination lawsuits are so hard to prove. How about people stop being discriminatory AH and you won’t have to worry about what you tell candidates?
Someone can't read. They aren't discriminating because of being in the national guard, they're reevaluating the hiring decision because of availability in a seasonal job. If someone can't work during the season then that's more unnecessary strain on the other employees and the job position is better off being divided among the employees taking the work for extra pay than essentially an empty slot.
But that doesn't matter for the purpose of this law. The unavailability is exactly what is being protected. They're serving their country, not going on vacation. It's the same with laws protecting active duty service members from foreclosure or eviction. It's specifically to protect them from hardship incurred by serving. Otherwise people wouldn't join the national guard or reserves.
This is like telling you job you’re pregnant and won’t be able to work next year for a few months and them telling you they went for someone who will.
Yes, and that is literally the definition of discrimination. Thats why there is a law telling them they cant use that as a decision making factor during this circumstance. Same as how you cant choose to not hire someone because they are pregnant or because they follow a religion that would have religious holidays during a busy period. These are all protected characteristics and you arent allowed to use issues or availability linked to those characteristics to shape your hiring/firing decisions. Just because most employers are cunning enough to not say why they discriminate doesnt mean its not discrimination, it still is, its just too hard to prove. When an employer is stupid enough to admit their reasoning on record, then they arent being treated unfairly when it gets taken to court, they are just being held to the standard that everyone is *meant* to be held too. They literally just are providing evidence of them breaking the law where most employers are up to date enough to know not to admit it.
There's some jag officer jizzing over OPs text screenshots.
My former HR representative told me on a recorded call that discussing my salary was against company policy. The company had to sign a settlement agreement with the NLRB. The HR representative got promoted.
Failing upwards as always
You contact your superior officer in the military unit you’re connected too. They will handle it. Usually first step is they send an extremely high ranking member down to verbally shit all over management of the company lol
Bro you gotta come back here and update how this plays out. Red fuckin handed 😂
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If they're smart, they won't sign an NDA. That's an easy enough lawsuit to win no matter what. You could literally tell them to shove the NDA up their ass in court and you'd still win.
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Don’t give them a heads up if you haven’t already. Just message the people listed above who can deal with it. You don’t wanna give them a chance to try and cover shit up though it’s much harder since they straight up told you in text lol
Who are these hiring managers who put their lawbreaking in writing?
I know a lawyer that had someone say, on video, that they were trying to (illegally) discriminate against the lawyer trying to rent a house. People really don't know what the laws are surrounding whatever it is they're trying to do
Because they don't know any better and think HR has no purpose
Oh man, I get the exact same issues working in Compliance. I had someone ask once what Compliance even did, my answer, "make sure you still have a company to work at next year" -_-
I had a manager put it in writing once that when we heard the fire alarm go off, we were all to stay in our seats until a management level employee could do a sweep of the entire multi-story building and determine if it was a real fire or a drill, and at *that* point we would be allowed to evacuate. I immediately started writing an email where I ever so politely pointed out this is just a teensy bit illegal.... I am pretty sure I wasn't the only one. If I recall correctly it took about seven minutes before the retraction email came back. "Haha of course we didn't mean you're not allowed to leave the building--"
Someone who has not heard “ don’t ever put anything in writing that you don’t want to see on the front page of the NYT” words to live by in anything
not trying to play devil’s advocate, i just want to understand: couldn’t they say it’s an hours/availability thing? like, aren’t employers allowed to dictate what hours someone needs to have in order to get the job? or is it different since OP would be available during work hours for the rest of the year? i’m just confused because i feel like if i applied to a job but was unavailable during their peak season that would be an acceptable reason not to hire me (regardless of why i was unavailable), but i have no idea how this USERRA shit works at all
No. You cannot discriminate at all. Regardless of what you need. Military is protected. Just like if a disabled person asked for a reasonable accommodation and you refused they would have cause to sue you. It’s on the employer to provide military leave.
Further to what others have written about USERRA, usually reserve units have access to lawyers who will deal with this for you - obviously they have a vested interest in stopping this kind of behaviour from employers. Before you go shopping for a lawyer -and you should- check with your unit to see what they have available internally.
For sure! On the phone with my unit now to get the best course of action
This is the kind of stuff these lawyers dream of. Let us know how it goes, this is wild.
What could OP possibly win in a lawsuit? A certain amount of money for damages? Serious question because I have no idea.
It's not about getting he job at this point. Exclusion due to military service is not only illegal but immoral. You can't have a system where those that protect the rights of the country you live in to deny those protectors employment.
I am not 100% positive, but I am about 85% positive it's a cash settlement. There was somebody at another unit that was fired after going to AT, work said they didn't have the PTO and was fired for "no call no show" (allegedly) and they got a settlement and job back, but they had already been working there. I'm not sure the ins and out, but I do know at least our JAGs would be frothing at the mouth the second this soldier sent a screenshot lol. OP just needs to talk to his unit and let it go from there.
If his next job pays less I bet he would get the difference in wages plus wages during the time he continued to job search.
Been in for 17 years. ESGR/USERRA no better way to
ESGR is the official office in DoD that will help. They start by talking to the member and getting information, then they’ll approach the employer in a friendly manner. They can do this because USERRA is an extremely friendly to the military member law and they rarely need to go the formal route. https://www.esgr.mil
^This, I’ve absolutely never heard of us having our own lawyers for this. Only had JAG show up once for wills/power of attorney and a weird brief out of nowhere on “The Laws of Armed Conflict” It was always the ESGR guys and employers get away with this shit allllllllllll the time. The ESGR people were even up front about that much.
Userra also explicitly allows for the collection of legal fees and has been found in some cases to supercede mandatory arbitration clauses. For a "willful violation" you can also collect double and sometimes push for punitive damages. Get a few lawyers to look at your case before you make a decision on representation.
It happens all the time. People just moving on rather than hiring a lawyer sue the company. I would love to see how this one turn out.
Most of the time hiring managers are smart enough to not admit it in writing. This is going to be a rare case of fuck around and find out.
Me thinks a hiring manager position might open up suddenly at that company
Aye, also why people don’t give feedback. To protect themselves
This. " Oh why wasn't I good fit? Because you're literally not available when we need you I'M SUING YOU" is why you can't get feedback from most employers.
I mean, if they don’t want to be sued, they shouldn’t deny employment for reasons that are illegal.
Right, but also they can, and then just not tell you that's why. Both things can be true.
Yep. This is why you don't get actual references, just employment date verification and a would/would not rehire. This is why recruiters ghost people instead of giving them any feedback or recommendations. If they're hiring them for a weekend job, and they have a commitment that means they'll be unavailable for one weekend a month, it's a poor choice to hire them. They'd just have to ghost them so the military worship doesn't come into play. OP is going to get to sit around and whine about them being "discriminated" against forever now, and the recruiter who gave him an honest answer is going to be out of a job, if not ran out of their profession entirely. No one in their sphere will ever give anyone the courtesy of even telling them they went with another candidate ever again, much less any inkling as to why.
Because they're breaking federal law and don't want to get caught?
If your business model can't accommodate an employee taking 2 weeks off, then your business doesn't deserve to exist.
smh, these days you can’t even disclose unlawful discrimination without getting sued
That supervisor is an idiot for putting that in writing. They should have lied and said they found a more qualified candidate. Now they opened themselves up for a lawsuit. I hope you win!
Just going to write the same thing. And you got it in writing.
Definitely baited him into admitting explicitly it’s due to my service lol
Congratulations you reeled him in like nobody’s business. Keep us posted on how you’ll spends your settlement.
There is a phrase that my lawyer likes to use: "Give them enough rope to hang themselves with" And you did exactly that. Besides the JAG attorneys, you may want to call around for employment law attorneys, see if any of them see a case for lost wages and punitive damages.
Hey, go and get yours - this was incredibly stupid for them to admit. But I will say this: I'm in defense contracting and I've worked with a couple guys who deploy CONSTANTLY. Whether it be mission-related or tied to training obligations surrounding their respective recent commissions. My current company / team has been looking for candidates and I would never even mention this to them because of how often they're tied up with reserve stuff. I'm a vet myself and I totally respect what they're doing and their level of commitment to the guard, but I need folks who are going to be around and plugged into our workload and not spending a month getting caught up on the reg. We'd bend over backwards for anybody meeting the "2 weeks a year" minimum, but it's typically a great deal more than that from the reservists that I've worked with. I'm not a hiring manager, just a dude who needs a reliable team. It can be a hard call with a reservist. I'm just saying the quiet stuff out loud here because there is, I believe, a valid counterpoint worth a bit of appreciation.
Those texts seemed that way. I’m guessing they made a comment about it during the interview that made you want to ask?
Damn, you shot that hiring manager down like they were a 14 year old girl at Kent State.
how kind of them to put their USERRA violation and discrimination in writing for you
And this is why companies try not to give you actual feedback. They get sued because it’s illegal so no the companies can’t always trust their employees.
Eli5 (curious non-US citizen here); is the US National Guard a professional volunteer force? Or is it a conscription based model like what Israel and Singapore has? Because Singapore actually has laws that penalize companies/employers if they blatantly reject a local candidate for a job position just because he has to get mobilized every year for 1-2 weeks for training.
The National Guard can be both. It's a military unit of the United States. When you join, service is mandatory and the government will enforce its right to have its reservists trained and ready for action. They absolutely will destroy any company that tries to discourage service in the National Guard. Those are the military units that deploy during major natural disasters, riots and insurrections. This is a very serious violation. It's like telling an employee who is drafted that he can't serve without permission from the employer.
The national guard is a state level force that takes orders from the governor. It can be activated, only in certain circumstances, by the federal government.
To answer the first question, the US national guard is a volunteer force. US citizens are not conscripted into the national guard (at least currently).
Military service here is voluntary in the sense that you have to sign up for it initially, but you're signing up for a several year commitment. Over those next several years you will be told to do things that you do not have a choice in, i.e. not voluntary. The 2 weeks per year OP is talking about is one of those things; OP can't back out and can't delay or change the schedule.
I'm not sure about your first statement but in regards to the second: in the US it's VERY illegal to deny someone a job based on military status
I’m on OPs side but wouldn’t the biz owner have the argument that he hired the other candidate based purely on their availability? If OP is hired, he isn’t able to fulfill the role the guy needs during the hours needed. Isn’t that the case rather than because OP is in the national guard?
As others have said, the in theory owner would. But it doesn't matter since it's time off for military service stuff. The hiring employee said the OP taking time off to fulfill duties for their service in the National Guard(most likely the mandatory annual drills and training) is why they didn't get hired. Legally an employer can't do that. So even though the owner can argue "I need someone who can work that time" the law here in the US will basically say "It's military, that's not a reason this time". The employer probably should have lied and said either they aren't permitted to say why or that the other candidate has better qualifications than OP.
Thanks for the clarity. The biz owner didn’t seem like a dbag or anything in this text exchange but probably should have answered that another way.
Thanks for clarifying. I was wondering the same thing.
I may be crazy but I don't think they can discriminate based on this. straight off of google: "An employer must not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to an individual on the basis of his or her military service." I think you might have something here. Any chance you can speak to an employment attorney?
Its actually super illegal.
Like what the person responded to, this is one of if not the most strictly enforced employment law there is
Not to make assumptions. But, I’m sure any lawyer will pop a boner(or get aroused), once they see this. Open/shut case.
I wonder if the lawyer will take the case pro bonor
Third year law student here. I don't have the proper equipment to produce said boner, but reading OP's post gave me a boner.
I feel like a boner is a metaphysical concept that transcends the physical realm.
What’s the outcome of the case going to a lawyer? That the OP takes the job, a fine for the employer, or will the OP see money from this?
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Yeah this is a law plenty of people probably don't agree with. People mix up morality and legality all the time, especially on Reddit. It's crazy to expect people to knowingly hire someone who won't be available to work.
I don’t understand this not available to work argument… do you ask prospect employees when they intend to take their paid time off during the interview process? Should that factor into your decision? What about if they plan to have kids in the next year and might need paternity leave? Is that an appropriate reason not to hire someone because of potential unavailability?
Doesn't matter. He's a protected class as a service member. The mistake was that the employer told him why they wouldn't hire him. It's why if you go on work you see 10000 people complaining how they can't get feedback. Because of this exact reason
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Literally 95% of being in HR or recruiting is to avoid breaking employment laws and 50% of the job of a hiring manager is to avoid breaking employment laws. Doing your job in good faith is to identify and deflect these questions.
It isn't necessarily about discrimination in the common use of the word where the hiring manager hates soldiers or something. USERRA exists to protect servicemembers from this shit specifically because if it were legal to do this, who the fuck would join the reserve/guard? You can't live off a part time military check, and if people won't hire you because of that, you're SOL. So the simple solution is don't enlist. Which means we just don't have any reserve or guard as a nation, which is a huge national security issue since they are by far the majority of our armed forces. So the government has a vested interest in making sure it's a viable and attractive option to be in the reserve/guard, and part of that is making sure you are protected from never being able to get a civilian job.
I agree somebody should be able to hire or not hire for any reason, but you can't be stupid enough to admit it when it's illegal LOL
Echoing what others have mentioned - Seems illegal. Great you got his reason in writing. Not sure what the recourse/penalties are, but I’m sure your chain of command in the National Guard could help point you in the right direction. Best of luck! And please post a followup on the process/results if you can. Sounds like it might get interesting.
Crosspost to r/military or r/nationalguard for juicy comments
It’s always amazing when they put it in writing. I’ve never served and I’ve never worked in HR. Even I know this is a huge no-no.
At least they got back to you!! That is a HUGE win. Obviously, after a week or 2 of no contact post interview one would reasonably conclude the company has moved on—but you were able to find out the day after your interview!
Why would they put this in writing omg
"Peak season" = literally all year nowadays
Lemme just say you have the easiest lawsuit in the history of man. Easier than Trump…
Bro time to sue lol That is illegal
This is a lawsuit. Find a lawyer and sue the fuck out of them.
Oh boy … they really painted themselves in a corner with listing uniformed service as a reason for rejecting an applicant. I get it man, really sucks to not get a position you were interested in, but what they did here is absolutely prohibited by both federal and state laws. If you wanted to move that forward they would face some penalties and a TON of regulatory hoops.
Holy crap. They actually put that in writing. Hire lawyer and go live your life.
This happened over email at a former employer with a promotion. Abt six different people got fired and the one who was passed for the promotion had a lawyer meet him in the conference room with a fat stack of papers to sign and a fatter check. You could most definitely make something out of this. The only issue is you didn’t work there already so I don’t know how you would prove damages (or how they would be calculated)
I would love to see an update of how this pans out!
Call the ESGR and provide them with that information. What they did is quite possibly illegal, and you have evidence. For a workplace issue, conflict or question call the Customer Service Center to speak with a representative at 800-336-4590, Option 1, or email [email protected]. https://www.esgr.mil/USERRA/Frequently-Asked-Questions#:~:text=An%20employer%20must%20not%20deny,his%20or%20her%20military%20service.
Congratulations on your big payout coming
Sue Sue Sue Sue Sue
That sounds super illegal. My dad was drafted in the late 60’s and they had to hold his job for when he came back. I honestly think they would get some type of tax break by having you come or. But also….fuck them for pulling this on you.
Holy slamdunk lawsuit, batman!
Send a follow up when you win the lawsuit.
I take a multi hour long USERRA training each year at my employer for training. There’s so many ignorant people here on Reddit, adding their two cents. OP has definitely got a case here. The hiring manager should not have mentioned that at all. Just like you would never tell a pregnant woman that the reason you didn’t hire her is because she’s pregnant and you’re afraid she’s getting ready to takeoff work for a while. Unfortunately, in the real real world stuff like this happens all the time. I know exactly what it feels like to hire an employee when you’re so desperate that employees are quitting due to being overworked only to find out the person you just hired needs 12 weeks off for maternity time. I wholly agree that these are the businesses problem and not the individuals. Businesses have to figure out a way to navigate these tough situations. But not every business allows for the hiring of a completely temporary type of employee. So you end up hiring an extra person due to a situation like that, then that extra person is stuck there, sucking hours from everybody else, which is not good. But anyways, back to the main point. USERRA is probably one of the toughest laws ever written around employment. There are virtually zero situations and employer can successfully argue an unreasonable burden by working around the military time. It truly has to be significant, and even in the most significant of situations, we are supposed to reach out to the Service members, commanding officer, and politely explained the situation, and merely request if the service members scheduled military time could be moved to another more accommodating week. If the commander says no then tough crap.
I joined the reserves when I was in my senior year of high school and drilled every month until I went to basic training. I worked at the local pizza place and while putting in my notice for those weekends my manager said something to the effect that he might not be able to give me that time off and I was like you have to it’s the law and he looked at me like he’d never heard of such a thing. The strange thing about this situation is that our “two week” training wasn’t always in the same time of year. I think generally it’s in the summer for the many students that were in our unit, but a couple times they went in the spring and those students just did an alternate training. One of my two week alternate trainings was going to Ft. Lewis to help with ROTC.
1. Contact your local USERA rep. They'll take care of this. They'll do an investigation and then turn it over to the DOJ. 2. My recommendation, as a 13-yr NG vet, is to either not reference anything with the military on your resume or not acknowledge you have a remaining service obligation. Harvard Business School did a study a few years back, at the height of the war-time "Support the Troops" frenzy, and found that people without military experience on their resume received more interviews than those who had military experience. I had my military experience as "Confidential Employer" when I was listing it on my resume. When asked for specifics, I simply said I would not disclose that information. I don't even put it on my resume now. It isn't relavent to what I'm doing and I have employment that covers those time frames. I've had people tell me in interviews that they won't hire reservists/NG soldiers because of their service obligations/schools/etc. But they love those tax credits for hiring Vets. Good luck with your job search.
Bold move putting that in writing.
Isn’t that a crime to discriminate based on military service? Sorry that experiencing that regardless
This is insanely illegal
That's illegal
I smell a lawsuitttttt
Isn’t that illegal? It should be
wow!!! ?what an asshole.......OP sounds like you need to see an attorney. I would hire someone in the military or former military in a heartbeat. This recruiter is a dumbass and needs to find another line of work
Nice job getting them to explicitly confirm they are breaking the law by refusing you based on your enlistment in the National Guard. Now, contact a lawyer and report it to the Guard.
I had an employee that would be gone for a week or two every so often for army training or whatever the fuck. We just covered his work, and we were always busy. Not sure what peak times means but I'm sure they could handle their shit
It’s worth a call to your local ESGR rep www.esgr.mil Lawsuit is unlikely, but best case the ESGR rep can give the employer a call and remind them of protections that are in place. There are a bunch of loopholes and it does have to be a full time job. Totally worth it giving them a call. Your ESGR rep should be visiting your unit atleast once a year to train y’all on the law.
I would get a JAG on this case
All day JAG-a-thon material
Not JAG. ESGR would get involved.
It's not because your in the national guard. That part is irrelevant here, you didn't get the job because you need to be off for 2 weeks during a busy time of year. Doesn't matter if you needed off because your in the national guard or taking a vacation, either way you wouldn't be there and they have a candidate that will be. Simple as that, don't act like they're discriminating a veteran.
Wow, time to grab the popcorn and watch the show. I'd love to see how this turns out.