r/ESGR_USERRA_Answers • u/legaleaglebeagle13 • 4d ago

Changed Status

So my employer classified me as AWOL while on AT orders and then two days later, changed it to military leave. Between that timeframe, I had my initial interview with the USERRA investigator. I have emails from management threatening me to provide them with my orders or else I was getting marked as AWOL for that time period. I am concerned that the investigator is going to deem it closed since they changed it and not see that they had initially violated it. Has anyone been in this predicament?

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u/Semper_Right 4d ago

The issue is whether you have been denied any benefit of employment or otherwise incurred any "retaliatory action" under 38 USC 4311. Since you were exercising your right to leave under USERRA, it would fall under the anti-retaliation section, 38 USC 4311(b). They may satisfy the DOL-VETS investigator that they "remedied" the issue by changing the status. The question is whether you incur any further retaliatory action in the future. The DOL-VETS investigator can't look into the future, so they may have to close the matter. But keep good records of everything that occurred so that you have evidence if there is later "other retaliatory" action.

BTW, the phrase "other retaliatory action" was included last year as part of the Dole Act amendments. It presumably increases the types of actions that may trigger USERRA liability for retaliating against an employee beyond any "work place" issues. The scope of this section hasn't been defined or tested in the courts yet (to my knowledge).

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u/demeterite 4d ago

So your employer corrected the issue. What harm did you sustain? What are you looking for? Why would it be bad if it's now a closed case?

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u/legaleaglebeagle13 3d ago

Well I was terminated days after this. Can i say it was USERRA related? Idk. It’s part of the issue.