Joseph L. Sulman, The Daily Record Newswire
The legal services offered by lawyers depend largely on the clients they serve. Today, with more and more service members returning from deployment, it is worthwhile for attorneys to become familiar with the federal law that provides increased rights and protection to service members and veterans — the Uniformed Services Employment and Reemployment Rights Act, or USERRA, 38 U.S.C. §4301, et seq.
As its name indicates, USERRA prohibits employers from discriminating against employees and prospective employees due to past, current or future military service.
The law applies to all members of the Armed Services, Army National Guard and the Air Force National Guard, but does not apply to state call-ups to the National Guard for disaster relief and similar service. The law is not limited to combat service.
While USERRA prohibits discriminatory treatment against service members in all employment decision, it is most notable for providing reemployment rights to service members.
The law entitles veterans to reemployment with their most recent employer for up to five years of combined military leave with no loss of seniority.
It applies to training, mandatory in-country service and deployment in foreign combat, provided that the returning service member has not been discharged under dishonorable conditions.
The five-year maximum does not apply if the service is mandatory or voluntarily provided during time of war or national emergency.
Returning veterans must be placed in either the position they would have held absent the departure for military service or a position of similar seniority, status and pay. The law also requires that reasonable efforts (such as training or retraining) be made to enable returning service members to refresh or upgrade their skills to help them qualify for reemployment.
The law provides for alternative reemployment positions if the service member cannot qualify for the former position.
USERRA also provides that while an individual is performing military service, he or she is deemed to be on a furlough or leave of absence and is entitled to the same benefits and rights accorded other individuals on non-military leaves of absence.
The period an individual has to apply for reemployment or report back to work after military service is based on time spent on military duty:
• For service of less than 31 days, the service member must return at the beginning of the next regularly scheduled work period on the first full day after release from service.
• For service of 30 to 180 days, the service member must submit an application for reemployment within 14 days of release from service.
•For service of more than 180 days, an application for reemployment must be submitted within 90 days of release from service.
USERRA also provides protection for disabled veterans, requiring employers to make reasonable efforts to accommodate the disability. Service members recovering from injuries received during service or training may have up to two years from the date of completion of service to return to their jobs or apply for reemployment.
Aggrieved employees may choose to enforce their USERRA rights through an administrative process or civil litigation.
The aggrieved employee may file a claim with the secretary of labor, who has 90 days to investigate the complaint and, if the complaint is found to be credible, attempt to resolve it. If the secretary fails to resolve the complaint despite crediting the allegations, the aggrieved employee will be notified and may then request that the secretary refer the complaint to the
attorney general for enforcement.
The aggrieved employee may also seek to pursue a private cause of action at any time. In other words, there is no requirement to exhaust administrative remedies.
If the employee chooses to pursue the administrative remedy by filing a complaint with the secretary of labor, however, he or she must wait until the secretary issues its findings to file a complaint in court.
Twofold lesson
The jurisdiction of a USERRA lawsuit depends on the employer. If the employer is a non-governmental entity or a political subdivision of the state, the employee must file in federal court. If the employer is the state, then the employee must file in state court.
When the employer is the federal government, there is no private right of action and the employee must pursue the claim before the Merit Systems Protection Board.
USERRA was passed in 1994 as a successor to an earlier statute, the Veterans Reemployment Rights Act, or VRRA. The caselaw on USERRA’s application is still developing.
The 5th U.S. Circuit Court of Appeals held last year in Carder v. Cont’l Airlines, Inc., 636 F.3d 172 (5th Cir. 2011), that USERRA does not provide a cause of action for a hostile work environment.
However, Congress responded to the decision, and others, by amending USERRA to expressly prohibit hostile work environment discrimination by amending “benefits of employment” to include the “the terms, conditions, or privileges of employment” as found in Title VII.
Although USERRA shares similarities with Title VII, it differs significantly in the burden of proof. Once an employee shows that his or her military service motivated the adverse employment action, an employer can escape liability under USERRA only by proving that it would have taken the same action absent the illegitimate motive.
That has been described as a two-pronged burden-shifting analysis in contrast to the traditional three-pronged McDonnell-Douglas burden-shifting analysis. The employee’s service does not have to be the sole motivating factor for the employer to be found liable.
Liability for USERRA violations can be severe. In 2011, the 2nd U.S. Circuit Court of Appeals affirmed a USERRA verdict of nearly $390,000 in back pay and an equal amount in liquidated damages in favor of a financial advisor whose client base was severely diminished after he was reinstated upon returning from service.
Most cases, of course, result in smaller monetary recoveries. A Home Depot in Arizona agreed to pay a former employee $45,000 after firing him for repeated absences due to his National Guard service.
The Home Depot case illustrates the challenges that USERRA presents for employers. An employee cannot be disciplined for absences caused by military service, even if the employer admires the service itself but simply has a legitimate business reason for requiring the employee’s presence at work.
The lesson here is twofold. Attorneys who represent employees or veterans should consider whether the rights and protections under USERRA may apply to their circumstance or case.
And lawyers who represent employers should ensure that their clients understand their legal obligations to their employees and former employees who provide military service.
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Boston lawyer Joseph L. Sulman concentrates his practice on employment litigation and civil rights.
