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Austin, Texas 78765
Email: aaron@adlglaw.com
The Law Office of Aaron Charles de la
Garza
Counselor and Attorney at Law
Austin, Texas
Client Alert:
USERRA: Protecting The Employment Rights of Returning Military Reservists
What Activities Are
Protected By USERRA? USERRA protects employees engaged
in training, fitness examinations, service, and certain other
service-related activities.
In practice, USERRA protects almost any activity related to an
employee’s military service, including pre-enrollment and other
prospective activities, such an employee’s visit to a military
recruiter.
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The Uniformed Services
Employment and Reemployment Rights Act (“USERRA”), which protects the
rights of employees in the armed services, is one of the least well-known
of the federal anti-discrimination laws. However, given our nation’s
military commitment in Iraq and Afghanistan, and the high number of reservists who are
currently serving or will soon be called to serve, USERRA is poised to
become one of the most common discrimination complaints facing
employers. The following is a brief summary of employer responsibilities
under USERRA.
Who Is Protected By
USERRA?
USERRA protects the rights of
persons in any United States uniformed armed service, including the Army,
Navy, Marine Corps, Air Force, or Coast Guard, and in particular protects
the rights of reservists.
What Rights Are Provided By USERRA?
An employee
protected by USERRA is entitled to unpaid job protected leave for the term
of his or her military service up to five years (or longer in some
circumstances). When the
employee returns to employment, the employee must, with some conditions,
be placed in the position he or she would have held if he or she had
otherwise been continuously employed, with corresponding pay and
benefits. This can often put
employers in a difficult position, as temporary or permanent employees may
have been hired to replace the departing employee. Nevertheless, under USERRA, the
returning employee is entitled to his or her previous position, even if
this results in the demotion or unemployment of the person who had held
his position in the serving employee’s absence. USERRA also protects
shorter-term leaves and absences for military training and other related
activities. Employers must
pay their share of health insurance premiums during short-term leaves of
30 days or less, and must provide COBRA continuation for longer
leaves. Although service
members may use any accrued vacation or other available paid leave during
their military leave, they cannot be required by employer policy or
otherwise to do so.
One of the most significant, and little-known, protections of
USERRA is that an employee returning from leave cannot be terminated
without cause for a period of up to one year, depending upon their
length of service. This
provision is a hidden exception to the at-will employment doctrine usually
enjoyed by Texas employers.
An employer can be excused from reemploying a returning individual
if the employer can demonstrate “undue hardship." Reemployment is also not
required if an employer's circumstances have changed so much that it would
either be impossible or unreasonable to reemploy the returning veteran.
In addition to the right of protected leave, USERRA also includes
very strong anti-discrimination and anti-retaliation provisions. USERRA prohibits discrimination
with respect to "any benefit of employment," and it extends this
protection to any "person who is a member of, applies to be a member of,
performs, has performed, applies to perform, or has an obligation to
perform service in a Uniformed Service." Thus USERRA protects even
potential and past members of the armed services. Further, USERRA prohibits
retaliation against anyone, regardless of military service, who files a
complaint under USERRA, testifies, assists, or otherwise participated in
an investigation or proceeding under USERRA, or who exercises any right
provided by USERRA.
What Are The Penalties For Violating
USERRA?
An employer who violates USERRA may be subject to an administrative
action or may be privately sued in federal district court for lost pay,
benefits, and reinstatement.
Additional damages in an amount equal to the awarded lost pay and
benefits may be recovered where an employer’s violation of USERRA was
“willful,” meaning that it was in knowing or reckless disregard of the
provisions of USERRA.
Attorneys fees, expert witness fees, and other litigation and court
costs are also available to a prevailing plaintiff; in contrast, USERRA
states that no such award is available to a prevailing defendant.
Why Is
USERRA A Concern For Employers?
Litigation under USERRA employs a burden of proof that can prove
extremely plaintiff-friendly.
Under USERRA, if the employee’s service is a “motivating factor”
for the alleged adverse employment action, the employer has committed a
violation of USERRA. This
means that liability under USERRA is possible even where the employer had
other legitimate reasons for an employee’s termination or other adverse
action (for example, poor performance). To counter this, an employer must
prove that it would have taken the same adverse employment action in the
complete absence of the employee’s military service. In recent litigation, this
standard has made it difficult to dispose of USERRA cases with summary
judgment or other pre-trial dispositive motions. Additionally, the public’s innate
respect for reservists and other persons in the military service may
predispose some judges and juries toward sympathizing with a
plaintiff. A USERRA thus may
not be subject to the public suspicion often felt toward other types of
discrimination claims, such as sex and race.
Moreover, USERRA expressly contains no statute of limitations
and applies to every employer, regardless of size. The breadth of USERRA and the
difficulty of defending against a USERRA claim make it of concern for all
employers.
How Can
Employers Prevent USERRA Claims?
Supervisors and managers should be reminded of their obligations
under USERRA. Employers should formulate and ensure compliance with leave and anti-discrimination policies that comply with the requirements of USERRA. (This article only provides an overview of USERRA, and does not list all of USERRA's provisions). Short and long term leave should be granted, in accord with the employer's procedures, upon demonstration of a
present or pending military commitment. Such
leave must provide the benefits outlined in USERRA. Further, employers
must be prepared to timely reemploy returning service members in the
position and with the benefits they would have received had they not taken
the leave, even if another employee currently holds that position.