As U.S. involvement in overseas conflicts come to an end and military personnel return to their civilian lives, the Uniformed Services Employment and Re-employment rights Act (USERRA) provides an important bridge for their smooth transition back into the jobs they left behind when they departed. Under USERRA, certain servicemembers are afforded meaningful protections and remedies against discriminatory treatment in the workplace.
This expert analysis by
TELG principal Adam Augustine Carter and TELG managing principal R. Scott Oswald was published by Law360 on November 21, 2012. The full article is available at Law360. (Site requires paid subscription.)
Originally published in:
Smooth Transitions For Servicemembers: USERRA Protections
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As the United States winds down and changes its troops’ involvement abroad, many servicemen and women are returning to their civilian employment. The Uniformed Services Employment and Re-employment Rights Act, 38 U.S.C. §§ 4301-4335 provides multiple protections to servicemembers during their deployments and upon their return to work, requiring that servicemembers be reinstated to the position where they would be if they had not been absent due to service and prohibits their service from being a factor in any decision.
Servicemembers Entitled to USERRA Protections
Men and women who are returning to their civilian employment after serving in the “uniformed services” (i.e., the Army, Navy, Marine Corps, Air Force or Coast Guard, the Army, Naval, Marine Corps, Air Force or Coast Guard Reserves, the Army or Air National Guards, the Commissioned Corps of the Public Health Service and any other category of persons designated by the president in time of war or national emergency) are eligible for the USERRA protections.
First, the USERRA applies to all public and private employers in the United States, regardless of size — even employers with only one employee. 38 U.S.C. § 4303(4); 20 C.F.R. § 1002.34. All job positions, except independent contractors, are covered by the USERRA, unless the employer can prove that the job in question was truly a temporary position. 38 U.S.C. § 4313, 20 C.F.R. § 1002.44. the USERRA also applies to American companies operating in foreign countries, unless the relevant foreign law directly conflicts with the USERRA’s provisions. 20 C.F.R. § 1002.34.
An employee is entitled to return to work, provided that his or her service has not exceeded five years, the employee provided notice of his or her service to the employer, and the employee has not been discharged dishonorably due to bad conduct or under other than honorable circumstances. 38 U.S.C. §§ 4304, 4312.
The USERRA’s Protections
The USERRA provides numerous important protections to returning servicemembers. First, servicemembers are entitled to return not to the same positions they had when they left for active duty but rather to the position the employee would have obtained had they remained actively employed. This is called the “escalator position.”
In other words, the employee is entitled to the same job plus the advancement (and/or regression) that would have occurred during the employee’s period of active service. Id. at § 4313; 20 C.F.R. § 1002.191. The USERRA also requires that the employer make reasonable efforts to train or retrain returning employees so that they would qualify for any position that they are entitled to fill. Id. at § 4313. The escalator principle applies not only to an employee’s position but also to an employee’s pay, benefits, seniority, duties, job location, schedule or any other benefit of employment.
Re-employment of returning military members may even mean that an interim worker can be moved or displaced to make room for the returning servicemember. Thus, employers should advise temporary replacement workers up front that their jobs are subject to displacement if the returning reservist requests re-employment.
Employers may only avoid their re-employment obligations if their circumstances have so changed as to make such re-employment impossible or unreasonable, or if re-employment would impose an undue hardship on the employer. For example, an employer may be excused from re-employing a returning individual where there has been an intervening reduction in force that would have included the returning individual. The burden, however, is on the employer to prove these circumstances. 38 U.S.C. § 4312(d)(1)(A) & (B); 20 C.F.R. § 1002.194.
Second, the USERRA essentially converts a returning servicemember’s employment to that of a “for-cause” employee. In most states, companies employ their workers at will, which means that employers may terminate their workers’ employment at any time, with or without advance notice, for any reason or for no reason at all, as long as the reason for termination is not illegal.
However, the USERRA prohibits employers from terminating servicemembers’ employment, except for cause, within one year after the employee’s date of return if the employee’s active duty was longer than 180 days. If the deployment was for more than 30 days but less than 180 days, a returning servicemember may not be discharged except for cause for 180 days. Id. § 4316(c)(2). If an employer terminates a returning servicemember, the employer must prove that it was reasonable to discharge the employee for the conduct in question.
For example, in Hill v. Michelin North America Inc., 252 F.3d 307 (4th Cir. 2001), the Fourth Circuit held that the plaintiff’s termination was permissible under the USERRA where the employer showed that it terminated the plaintiff for falsifying his timecards.
However, in contrast, in Duarte v. Agilent Techs. Inc., 366 F. Supp. 2d 1039 (D. Colo. 2005), the U.S. District Court for the District of Colorado found that the employer failed to show that it terminated the plaintiff for cause even though it provided evidence that it was struggling financially and that the plaintiff had an uneven performance history. The court found that the employer should have given the plaintiff a fair opportunity to resume his previous duties before evaluating him for a potential reduction in force.
More recently, in Seiler v. Hollidaysburg Am. Legion Ambulance Serv. Inc., CIV.A. 3:10-41 (W.D. Pa. Sept. 8, 2011), the U.S. District Court for the Western District of Pennsylvania rejected the plaintiff’s claims of impermissible demotion because the defendants had presented evidence justifying his demotion, including numerous job performance deficiencies, such as the plaintiff’s failure to collect on unpaid accounts, his failure to confiscate the work cell phone of a terminated employee, his failure to suspend an employee charged with a felony, his failure to discipline an employee for using an ambulance for personal purposes and more.
Again, in contrast, in Brown v. Prairie Farms Dairy, Inc., 3:10-CV-01136 (M.D. Tenn. Jan. 25, 2012), the U.S. District Court for the Middle District of Tennessee rejected the defendant’s argument that it justifiably failed to re-employ the plaintiff because the plaintiff was not qualified to perform the functions of a route sales driver since he did not provide the medical documentation and doctor’s release requested by defendant after his wrist surgery.
The court rejected the defendant’s attempts to require the plaintiff to fulfill additional requirements to return to work, stating that “any efforts by Defendant to impose requirements that go beyond those outlined in the USERRA — even if they were a general ‘company policy’ and were not imposed on Plaintiff specifically” are impermissible.
Third, the USERRA broadly prohibits all forms of discrimination against employees on the basis of military service. 38 U.S.C. § 4311. For example, an employer cannot terminate or discriminate against an employee who is frequently absent from work due to military training, even if the employee is not mobilized or shipped overseas.
Similarly, an employer cannot retaliate against the military member or any other employee who takes any action to enforce or assist in enforcing rights under the USERRA. An employer is deemed to have discriminated against a service member employee if the employee’s service-related activity is a motivating factor in the employer’s action, unless the employer can prove that it would have made the same decision in the absence of the employee’s service connection.
Consequences for Violations of the USERRA
If an employer fails to provide returning servicemembers with any of the protections set forth above, servicemembers may pursue judicial and administrative remedies.A returning servicemember is entitled to pursue a jury trial against his employer if the employer fails to re-employ him, prematurely or unjustifiably terminates him, discriminates him by denying him an entitled right or benefit or retaliates against him for exercising a right or engaging in an activity protected under the act.
A servicemember is also entitled to file a complaint with the Veterans Employment and Training Service (VETS), which has the authority to investigate and resolve the complaint as it sees fit, including court action if necessary.
A servicemember has the initial burden of showing by a preponderance of the evidence that his military service was a substantial or motivating factor in the adverse employment action. If the employee meets this initial test, the employer must then come forward with evidence to show that the employer would have taken the adverse action regardless of the employee’s military service for a legitimate reason.
The term “motivating factor” can be extremely broad. For example, one court held that a plaintiff’s military position and related obligations would be a motivating factor if the employer “relied upon, took into account, considered, or conditioned its decision on [the employee’s] military related absence.”
Most employment claims have clearly defined statutes of limitations, within which an employee must file his claims or be barred from doing so. However, the U.S. Department of Labor has long taken the position that no federal statute of limitations applies to the USERRA claims.
Further, on Oct. 10, 2008, Congress enacted the Veterans’ Benefits Improvement Act, which, in relevant part, amends the USERRA by removing the reference to the state statute of limitations in section 4323(i) and replaces it with a provision stating that no limitations period applies to the USERRA claims. 38 U.S.C. § 4327(b).
A servicemember who brings successful claims can be reinstated to his proper position and can also recover back pay, lost benefits, a correction of his personnel files and be awarded lost promotional opportunities, retroactive seniority, pension adjustments and restored vacation time.
Additionally, if the employee has hired a private attorney, the court can award attorneys’ fees and costs. If the court finds that the violation of the law was willful, it may also double the amount of back pay or lost benefits awarded. Pursuant to the USERRA’s express provisions, a prevailing employer is not entitled to recover its fees or costs.
As U.S. involvement in conflicts in the Middle East wind down, and U.S. servicemembers return home to their families and civilian lives, the USERRA provides an important bridge for our servicemembers’ smooth transition back into the jobs they left behind when they departed. Upon their return to their civilian employment, the USERRA affords servicemembers meaningful protections and remedies against arbitrary and discriminatory treatment in the workplace.
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Adam Augustine Carter is a principal of The Employment Law Group, P.C.; R. Scott Oswald is the managing principal at the firm.
