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December 2011
Volume 1, Issue 9 |
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About the Author
Brendan R. Yates joined the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC as an associate in 2002. Mr. Yates is a member of the firm's Litigation Department, where he focuses his practice on construction and real estate litigation, workers' compensation defense litigation, employment law, insurance defense and commercial litigation. He has successfully defended his clients in state and federal courts, the Kentucky Court of Appeals, the Kentucky Supreme Court, and in administrative agency proceedings in Kentucky.
Mr. Yates is a member of the Lexington Charity Club, which provides volunteer work and fundraising to local charitable organizations in Lexington. He has volunteered with the Lexington Chapter of the Leukemia & Lymphoma Society and was awarded the Man of the Year Award in 2005. He is also a Henry Stites Barker Fellow with the University of Kentucky Fellows Society.
Mr. Yates may be reached at (859) 231-8780, ext. 208, or at byates@mmlk.com.
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McBrayer Employment Law Video |
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PROTECTING THOSE WHO PROTECT OUR COUNTRY -
AN OVERVIEW OF USERRA
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Brendan Yates
Attorney |
Introduction
Members of the "uniformed services" are reliable, hardworking members of our society who have dedicated themselves to serving our country and protecting our rights. However, most employers are not certain as to how their employment policies and practices apply to members of the uniformed services who apply for positions of employment or are current employees. The answer, simply put, is that they are entitled to the same advantages, treatment, and success as persons who are not members of the uniformed services. In fact, in an effort to provide protection to them and guarantee them equal treatment, Congress passed the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. § 4301 et seq. ("USERRA").
What is USERRA and who does it protect?
USERRA is a federal law intended to ensure that persons who serve or have served in the Armed Forces, Reserves, National Guard, Air National Guard or other "uniformed services": (i) are not disadvantaged in their civilian careers or employment due to their service; (ii) are promptly reemployed upon completion of their service; and (iii) are not discriminated against because of their service. USERRA applies to the performance of a duty by a uniformed services member on a voluntary or involuntary basis and includes active duty, active duty training, initial active duty training, inactive duty training, full-time National Guard duty, any period of time when the member is absent from his/her position of employment for purposes of a physical examination related to any such duty, and any period of time a member is absent from employment for the purpose of funeral honors duty. Thus, USERRA was enacted to encourage service in the uniformed services by protecting service members from discrimination and providing job security when they are required to be absent from their employment in order to satisfy their military obligations.
What constitutes discrimination?
Pursuant to USERRA, an employer cannot discriminate against any person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service. An employer shall not deny such person initial employment, reemployment, retention in employment, promotion, or any benefit of employment on the basis of the person's membership in a uniformed service, application for membership in a uniformed service, performance of service, application for service, or any other obligation related to the uniformed service. Furthermore, an employer is prohibited from discriminating against or taking any type of adverse action against any person who has taken action to enforce a protection under USERRA, who has participated or assisted in an investigation or proceeding related to enforcement of a protection under USERRA, or who has exercised any right provided under USERRA.
An employer is considered to have engaged in discriminatory or prohibited conduct if a person's membership, service, application for membership or service, or obligation for service is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership, service, application for membership or service, or obligations for service.
(READ FULL ARTICLE) |
Even though the content in the McBrayer, McGinnis, Leslie & Kirkland, PLLC newsletter is primarily informative, state and federal law obligates us to inform you that THIS IS AN ADVERTISEMENT. You have received this advisory because you are a client or friend of the firm.
Copyright 2011 McBrayer, McGinnis, Leslie & Kirkland, PLLC. All Rights Reserved. |
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FIRM NEWS AND ANNOUNCEMENTS
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McBrayer, McGinnis, Leslie & Kirkland, PLLC is proud to announce that the following have joined our firm and will begin practicing January 1, 2012; Cecil F. Dunn, Of Counsel; Jason S. Morgan, Associate; Julie Cummins, Paralegal.
Cecil F. Dunn
For over 46 years, Mr. Dunn has served as attorney for non-profit corporations and for profit developers throughout Kentucky that have been funded for Section 202, 221 (d) (3), 221 (d) (4) and Section 811 Housing & Urban Development grants and United States Department of Agriculture Rural Development loans to build housing for low and moderate income individuals and families. Involvement has included preparation of Articles of Incorporation, Bylaws and resolutions and advice relative to various legal corporate matters such as conflict of interest questions, IRS tax exemption, contracts, regulatory matters, tax-credit closings, real estate matters and general legal advice. The sole purpose of these corporations and developers is to provide affordable housing for low and moderate-income, elderly, and disabled individuals; therefore, a strong housing expertise has been developed over the years by these associations.
While serving as General and Special Counsel of the Kentucky Housing Corporation (KHC), Mr. Dunn was the primary legal advisor to the corporation and its staff and as such provided a broad spectrum of legal services. Not only did he research and provide opinions on legal questions which arose before the Board of Directors and its Chairman and various administrative departments within KHC which involved day-to-day operations, but also provided services with respect to many special legal matters and low and moderate income multi-family housing.
Mr. Dunn graduated from the University of Kentucky College of Law in 1965 where he received his L.L.B. He is a member of the Kentucky and Fayette County Bar Associations and Kentucky Board of Tax Appeals, Member, Special Legal Counsel to the Kentucky Housing Corporation and Executive Director of The Hope Center. He is actively involved in various organizations and community activities, including Former Sayre School Trustee, Board Member and past Vice Chairman; Former Bluegrass Regional Mental Health/Mental Retardation Board, Inc., Board Member and past Chairman; Lexington Center Corporation (Rupp Arena), Board Member and Treasurer, past Chairman, past Vice Chairman and past Secretary, present Chairman for over 25 years; Downtown Lexington Committee, past Board Member and past Chairman and Executive Committee and a member and past Chairman of Federal Home Loan Bank of Cincinnati, Advisory Council and Recovery Kentucky Task Force, Member.
Mr. Dunn may be reached at cdunn@mmlk.com & cdunn@dfmlaw.com.
Julie Thomas Cummins
Julie Thomas Cummins has worked with Mr. Dunn as a paralegal for over 15 years. A 1998 graduate of Midway College with a Bachelor of Arts in Paralegal Studies, she began her career in 1995 as an intern for the Lexington firm Dunn, Franklin and Murphy. She continued to enjoy her association with each of her original employers after the firm disbanded, providing paralegal services through her company Thomas & Cummins, Inc. In recent years, she has primarily assisted Mr. Dunn in his practice including residential, commercial and multi-family housing loan closings involving and is experienced in title searches, as well as corporate law and general practice.
Ms. Cummins may be reached at jtcummins@mmlk.com & jtcummins@dfmlaw.com.
Jason S. Morgan
Mr. Morgan has worked in the legal field and insurance industry for over a decade. He gained insurance claims and litigation experience working with a Gulf Coast catastrophe insurance service provider handling property damage claims associated with Hurricanes Katrina, Rita, Wilma, Frances, Charlie and Jean. He also handled Department of Insurance compliance issues involving complex claim handling and complaint resolution.
Mr. Morgan has extensive experience with real estate development, residential and commercial construction, and small business management. He actively represents small business owners in a variety of real estate and business management matters. Additionally, he represents clients in the area of domestic relations criminal matters.
He graduated from Salmon P. Chase College of Law, Northern Kentucky in 2004. He received his B.S. from the University of Kentucky in business administration and MBA in 2000. Mr. Morgan is admitted to practice in Ohio and Kentucky state courts; U.S. District Court, Southern District of Ohio; U.S. District Court, Eastern District of Kentucky; U.S. Court of Appeals, Sixth Circuit. Mr. Morgan is a member of the Ohio, Kentucky, Northern Kentucky and Cincinnati Bar Associations and Ohio Association of Civil Trial Attorneys.
Mr. Morgan volunteers for several Kentucky/Ohio organizations including Legal Aid of the Bluegrass, the Northern Kentucky Bar Association, and the Muscular Dystrophy Association.
Mr. Morgan may be reached at jmorgan@mmlk.com.
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