Email to a friend

Federal Commissioned Officers Now USERRA-Protected

MSPB ruling extends protections from service-based discriminations

In a milestone ruling the U.S. Merit Systems Protection Board (MSPB) ruled that under certain circumstances some federal commissioned officers could qualify for anti-discrimination protections provided by the Uniformed Services Employment and Reemployment Rights Act (USERRA). The decision supplies federal commissioned officers with the ammunition to make a legal case if they believe they have been discriminated against by a federal employer because of their uniformed service.

In the case, Gjovik v Dept of Health and Human Services, Nathan Gjovik served as an engineer for 22 years in the Commissioned Corps of the Public Health Service (PHS). Gjovik accused the U.S Department of Health and Human Services (HHS) of violating USERRA by denying him of two promotions, transferring him to an undesirable location, subjecting him to a hostile work environment and constructive removal.

“Commissioned Corps officers’ protections against discrimination in the federal workplace have suffered because of their connection to the armed forces, even though it takes a presidential order for them to become militarized.  Finally, with the ruling, they can go on the offensive when a federal employer discriminates against them because of their uniformed service” said Lisa M. Windsor a retired Army colonel and JAG attorney who is of counsel to Tully Rinckey PLLC.

In 2004 The U.S. 4th Circuit Court of Appeals ruled that PHS officers are considered officers on active duty and therefore exempt from anti-discrimination statutes, such as those established, under Title VII of the Civil Rights Act and the age Discrimination in Employment Act. Even though one MSPB member said “common sense dictates’” commissioned officers and military officers should be viewed similarly in this case, a loophole in USERRA affords the law’s anti-discrimination protections to the former but not the latter.

Windsor urged career members of the uniformed service to consult with a military law attorney immediately if they believe their employer has discriminated against them.


Attorney Locator

Find an attorney near you.
Click below.

Contact Us

  • Tully Rinckey announces new hires and promotion

    Derrick T. Hogan was promoted to senior associate, overseeing the criminal defense practice in Albany. Hogan joined as a law clerk in 2009. Morgan Smith joined as recruitment manager. Smith has more than 14 years of staffing and recruitment experience and previously …

  • Albany Police Officer Arrested

    Officer Caught on Camera Slamming 15-Year old Girl Albany Police Chief Brendan Cox says on July 26th, Officer Ervis Miftari was called to St. Anne Institute, a rehabilitation center for troubled girls, to help with one of the residents, who …

Read All

  • Free Download: EEOC 2016 Update White Paper

    You Could Be Sharing Confidential Info and Not Even Know It Tully Rinckey’s white paper details the Equal Employment Opportunity’s (“EEOC”) nationwide change to procedure that has gone largely unnoticed. The new procedure applies to Charges filed on or after …

Read All

Read All

  • Tully Rinckey PLLC Binghamton Office Ribbon Cutting

    You’re Invited: Tully Rinckey PLLC Binghamton Office Ribbon Cutting Tully Rinckey PLLC, an upstate-wide coast-to-coast 70 attorney full-service law firm, is holding a ribbon cutting for its new office space at 4100 Vestal Road, Suite 104, Vestal, NY 13850 on …

Read All