ROCK ISLAND ARSENAL, Ill. -- As United States forces draw down their numbers in Southwest Asia, the number of reservists and guardsmen returning to their homes and jobs stateside will increase greatly in the coming weeks and months. With this influx of military personnel re-entering the civilian work force, it seems inevitable that there will be an uptick in Uniformed Services Employment and Reemployment Rights Act of 1994 claims for both. The goal of this article is to give a quick, yet comprehensive overview of USERRA as large numbers of reservists and guardsmen return home to Illinois.
Enacted in 1994, largely in response to veterans' and reservists' confusion and difficulty in understanding their employment rights following the first Gulf War, USERRA, 38 U.S.C.A. §§ 4301 et seq., is intended to be a clearer, more comprehensible version of the rights afforded by its predecessor, the Veterans' Readjustment Assistance Act, Pub. L. No. 93-508, 88 Stat. 1578 (1974), popularly known as the Veterans' Reemployment Rights Act. With such a huge number of National Guard and reserve troops being called to active duty -- nearly 900,000 since 9/11 -- USERRA stands to be more relevant than ever in the coming years (this number according to First Army Public Affairs Office).
USERRA provides job security to reservists, National Guard, and any individual serving in the military for fewer than five years, by making unfavorable employment decisions based on such military status an actionable, federal claim. The Act can essentially be broken down into two parts: (1) § 4311(a)-(b), the prohibition of employment discrimination based on military status, including retaliatory firing for enforcing rights under the Act itself, and (2) § 4312, the right to reemployment upon return from military leave.
Under its discrimination provision of § 4311, USERRA forbids employers from using an employee's military status as a factor when making decisions regarding the hiring, retention, promotion, and benefit of employees. In this instance, the burden falls to the plaintiff to show that the employee's military status was a motivating factor in the employment decision.
The reemployment rights provided in § 4312 of the Act treats military leave, whether voluntary or involuntary, as a furlough or leave of absence and entitles employees to reinstatement upon their return. This right is guaranteed provided the employee satisfies the Act's reinstatement criteria: (1) the employee gave proper notice of leave, where feasible, (2) the employee was on leave for less than five years, (3) the employee is not dishonorably discharged from service, and (4) the employee submitted a timely application for reemployment. Possibly the most surprising and potentially burdensome part of this provision is the fact that, once the returning employee satisfies these requirements, she is to be reinstated in the same position of seniority, status, and rate of pay that would have been earned had she remained continuously employed.
It is important to note that §§ 4311 and 4312 create two separate and distinct causes of action. Section 4312 automatically guarantees servicemen who satisfy its requirements the right to reemployment upon return from leave. Any other alleged misconduct is covered under § 4311, imposing on a plaintiff the burden of proving discrimination based on his protected status. Essentially, as many courts have pointed out, § 4312 ensures reemployment, but does not prevent the employer from firing the employee the next day. It is the subsequent, allegedly improper firing of the employee which is covered under§ 4311.
However, these sections are not necessarily mutually exclusive and under the right set of facts, a plaintiff may have a cause of action under both USERRA's antidiscrimination and reemployment sections. For example, an employee whose employer refused to rehire her upon return from military leave may bring a claim alleging a violation of her reemployment rights under § 4312, provided she satisfies the required criteria. Additionally, if the employer's refusal to rehire was based on a discriminatory purpose relating to the employee's military status, such as a fear that she may be called back to military service in the future, a discrimination claim under § 4311(a) may also stand.
In addition to bringing multiple causes of action under the Act itself, many situations may give rise to claims under other relevant federal, state, or local law which may be brought alongside a USERRA claim. For example, an employee suffering from a disability caused by a war injury whose employer denied him reemployment upon return from active duty, refusing to accommodate such injury, may bring a USERRA claim as well as a disability discrimination claim under the Americans with Disabilities Act. A plaintiff may have much to gain by including any related or alternative actions, as USERRA only allows for equitable remedies such as reinstatement and recovery of lost wages and benefits and does not provide for recovery of compensatory damages such as emotional distress or punitive damages, which may be permitted under other laws.
USERRA's provisions provide certain safeguards for employers, giving leeway to employers when rehire or promotion of an employee is impossible or overly burdensome, signifying the legislature's respect for an employer's difficult position of having to temporarily replace a potentially invaluable employee within their company. However, these exceptions are outshined by two significant factors that tip the balance of interests markedly in favor of the employee. First, USERRA prescribes no statute of limitations, allowing an employee to bring a discrimination claim any number of years after the event, entitling a successful plaintiff to a limitless number of years of back pay and benefits. However, the wary plaintiff's attorney will encourage prompt action or an employer may defeat the claim under the equitable doctrine of laches.
Second, the recent Supreme Court case, Staub v. Proctor Hosp., 131 S. Ct. 1186 (2011), may open employers up to more liability than ever. In reviewing the Seventh Circuit's decision, 560 F.3d 647 (7th Cir. 2009), the Supreme Court interpreted the phrase "motivating factor in the employer's action" to include any acts of military hostility causing an adverse employment decision, whether or not the hostility came from the person making the ultimate decision. In effect, if a direct supervisor of a military employee purposefully takes actions motivated by antimilitary animus and those actions are the proximate cause of the adverse employment action, then an employer may be liable under USERRA whether or not the employer had any knowledge of the antimilitary hostility when making its decision.
While there are many questions to be answered, a more thorough interpretation of USERRA will likely be hashed out as more cases arise. For any questions, talk to Employer Support of the Guard and Reserve, the Labor Department, or seek private counsel.
Related Links:
Uniformed Services Employment and Reemployment Rights Act
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