Protections for Service Members

The Uniformed Services Employment and Reemployment Rights Act (USERRA), codified at 38 U.S.C.

§§ 4301 to 4335, is a federal law that prohibits an employer of any size from discriminating against a person because of their service in the uniformed services. An employer is also prohibited from denying any benefit of employment based on an individual’s membership in, obligations to, or application to enlist in the uniformed services. USERRA also protects a veteran’s right to reclaim their civilian employment after being absent for military service. VBIA requires employer-sponsored health plans to provide COBRA-type insurance coverage for up to 24 months for employees who are absent due to military obligations. Additionally, employers must a post a USERRA informational poster in the same area where other notices for employees are usually placed. VBIA also instituted a pilot alternative program for the receipt and investigation of USERRA complaints by federal employees.

Employer's Obligations

Unlike Title VII cases, the employee plaintiff in a USERRA discrimination case never has to show that the employer’s reason for termination is a pretext; the burden of proof remains on the employer to show that the action would have been taken, with or without the military service. In Velazquez-Garcia v. Horizon, 473 F.3d 11 (1st. Cir. 2007), an employee claimed that he was terminated as the result of his reserve duty obligations. The company claimed that the employee was fired because he was operating a check cashing business for other employees in violation of the company code of conduct. In overturning a summary judgment for the employer, the First Circuit held that the employee must only show that his military service was a “contributing factor” in the employment decision.  73 F.3d. at 18. The burden then shifts to the employer to show that the action would have been taken regardless of the employee’s military service. Id. In Horizon, the employee had presented sufficient evidence of employer animus concerning his military service to warrant overturning the summary judgment and sending the case to a jury. The First Circuit’s holding follows that of similar cases around the country.

Types of USERRA claims: 

1. failure to reemploy (§ 4312);

2. premature termination (§ 4316); and 

3. discrimination in the denial of an entitled right or benefit, or retaliation for exercising a right or engaging in an activity protected under the Act, where the employee’s uniformed service is a motivating factor in the employer’s adverse action (§ 4311).

Thus, an employer violates USERRA “if the person’s membership, application for membership, service, application for service, or obligation for service in the uniformed services is a motivating factor in the employer’s [decision]” to deny the person any benefit of employment to which the person is entitled. § 4311(c)(1).

Remedies under USERRA

Remedies to a claimant under the law may flow from two different processes. The first is the administrative route (handled by the United States Department of Labor, VETS). The second is the litigation route (handled by the U.S. Attorney General or the Office of Special Counsel). Remedies may differ depending on which route is chosen.

Remedies available through the administrative route can include:

Return to a job
Back pay
Lost benefits
Corrected personnel files
Lost promotional opportunities
Retroactive seniority
Pension adjustments
Restored vacation

The courts can require the employer to comply with the law and restore all compensation referred to above. Where violation is considered willful the court may double any amount due as liquidated damages. The court may NOT, however, impose any punitive damages under USERRA. See 20 CFR Part 1002.312 and 20 CFR Part 1002.313.

Hiring Private Attorneys

Servicemembers who believe that they have been victims of an employment discrimination based on their military service may file a complaint with the Department of Labor or file their own lawsuit in federal or state court. If you choose to file with DOL, you may file one of two ways - you may submit a signed hard copy of Form 1010 or electronically file. You may also file a Form 1010 electronically via the Intranet by completing and submitting the online form. You should be aware that some courts have held that a lawsuit must be filed within a certain period of time after the alleged USERRA violation. Thus, it is important that you file a complaint with DOL or consult with a private attorney as soon as possible.

The website to use to file a claim with the U.S. Department of labor is here - http://www.dol.gov/elaws/vets/userra/1010.asp.

If you have questions about whether your employer has violated your rights as a member of the armed-services, contact Madathil Law Office for a free consultation.

Madathil Law Office, LLCOmaha Employment and Business Lawyer
1625 Farnam Street #830
Omaha, NE 68102
angela@madathil-law.com
http://www.madathil-law.com/T: 402.577.0686
F: 402.932.9551

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