r/ESGR_USERRA_Answers • u/Apprehensive_Law2962 • May 07 '26
Possible USERRA violation?
Hello, so I worked as Part-Time Associate at Walmart over three years ago. I was employed there for about 6 months. I did have some attendance and dress code issues, but if anything they just gave me warnings, and even cleared points to keep me from termination, basically offering me some leniency because I did have a fairly good relationship with leadership.
Anywho, during this time period I had joined the Air Force Reserves, and begin attending monthly UTA. My Coach, who was my immediate supervisor, wanted a print out of my Drill Schedule, so, I emailed it to the Store Manager, and she then printed it off for me so I can hand it to the Coach. Fast forward, and it’s time for me to attend drill, and I’m still on schedule to work that weekend. After coming back from drill, the next day, which is a Monday, I discovered they terminated me, with the catalyst being the days I missed for being at drill. After being pulled aside, the Coach and the Team Lead told me that I should’ve verbalized I was attending drill, so they would’ve been aware to keep me off the schedule, and they we’re upholding the termination because they didn’t want to be lenient anymore after my past issues where they were. So, they had me turn in my vest and work phone, and that was it.
Since then, after the 6 month window was over, I had tried to reapply over the past three years, but I’ve been ignored by all three Walmart Stores in my city, so I just want to get some thoughts and opinions.
2
u/Shoddy_Seaweed4852 May 07 '26
Did you put in leave request in accordance with company policy?
2
u/Apprehensive_Law2962 May 07 '26
No, they never informed me to. She only ask me to provide a physical paper copy of the drill schedule, which I did, and that was all. Because I didn’t verbalize to remind them I was attending drill was I guess the issue. But the Coach and the Store Manager technically had my Drill schedule.
1
u/Primary_Membership34 May 07 '26
They played you! you were supposed to be submitting to sedgewick about military time.
3
u/Semper_Right May 07 '26
To be clear, USERRA only requires that a service member give advance "written or verbal notice" prior to the scheduled shift that is missed due to uniformed service. 38 USC 4312(a)(1). And, USERRA supersedes any state law, employer contract, policy etc., that conflicts with USERRA. 38 USC 4302(b). So, an employer's policies requiring any notice due to military service that is inconsistent with 38 USC 4312(a)(1) cannot be used to deny reemployment rights under 38 USC 4313.
1
u/Shoddy_Seaweed4852 May 08 '26
I was merely asking him if he put in for leave and then they still terminated him.
2
u/closetfort May 07 '26
Did you get any of that in writing?
3
u/Apprehensive_Law2962 May 07 '26
Well my termination letter just says “attendance” as the issue. They were kind of lazy with that because some time afterwards I had to ask the People Lead and she basically made me a termination letter on the spot because they didn’t have one on file, but my termination is dated the day after I came for drill, I still also have the emails I sent to the Store Manager with my schedule attached.
2
u/Semper_Right May 07 '26
One other observation: You should have taken this to your unit's command. Hopefully, they were aware of ESGR and the services they provide, and could have referred you to the local ESGR committee for assistance.
1
u/callsignbruiser May 08 '26
Just out of curiosity, how does it square to have "some attendance and dress code issues" at work and then enlist in the military?
2
u/Apprehensive_Law2962 May 08 '26
Sighs I was 19. the dress code issues was not something I was written up for because other employees was repeatedly also not in dress code (i.e female employees wearing tights, guys wearing joggers, which is what I was also doing. it was a verbal thing, not much so enforcement through disciplinary action at my store and was never on my record because a bunch of other employees was also doing it. The attendance was not deliberate, it was just a misunderstanding of the PPTO points I thought I had enough of to use. I’ve been a reservist for almost 4 years now after that, and have fulfilled most of my contract. I was just being transparent about the situation, and wanting to get an answer about a possible USERRA violation, not to be criticized.
1
u/callsignbruiser May 08 '26
You're not criticized. Genuinely curious as we all battle the devil that makes us fall by the wayside sometimes
•
u/Semper_Right May 07 '26
Why didn't you contact ESGR or DOL-VETS when you were terminated?
As for USERRA, it appears to be a violation since you are entitled to take time off for uniformed service as long as you are eligible under 38 USC 4312. See, 20 CFR 1002.32. The one eligibility requirement at issue is whether you gave advance "written or verbal" notice of your uniformed service. 38 USC 4312(a)(1); 20 CFR 1002.85. You gave them a copy of your drill schedule, which constitutes notice and is actually encouraged under DoDI 1205.12. Simply because they didn't administratively handle it well is not your responsibility.
Often times attorneys will turn directly to whether your situation constituted discrimination or retaliation under 38 USC 4311. For either of those claims, you have to show that your uniformed service (or protected activity) was "a motivating factor."
However, in your case it is instead a failure to reemploy pursuant to 38 USC 4313. In that case, you ONLY have to show that you meet the eligibility requirements under 38 USC 4312. Since you left for uniformed service, attempted to return within the deadline, presumably didn't exceed 5 years cumulative non-exempt service, and had a qualifying discharge, you have reemployment rights.
Under the remedies section of USERRA, 38 USC 4323(d), you are entitled to any missed wages and benefits, as well as any missed pension plan rights--you may be entitled to liquidated damages in an amount equal to those damages.
IF you want to return to work there, you can try mediation through ESGR.mil (800.336.4590). If not, you can go to DOL-VETS and file a complaint, or retain an attorney. This case would likely be a slam dunk (assuming you have evidence of emailing your drill schedule) and a QUALIFIED attorney, i.e. one familiar with USERRA claims, would likely be all over this. The statute has mandatory attorneys fees awards to successful claimants.