The Journal of The DuPage County Bar Association

Back Issues > Vol. 15 (2002-03)

When Johnny & Jenny Come Marching Home Again (the USERRA) Hurrah!
By Glenn R. Gaffney

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA),1 strengthens and expands the employment and re-employment rights of all uniformed service members. This article describes some of those rights.

Eligibility

Under the USERRA, re-employment rights extend to persons who have been absent from employment because of "service in uniformed services" which includes active duty, training for active duty, full time National Guard duty, absence for examination to determine fitness for duty, and even "funeral honors" performed by National Guard or reserve members.2 However, an employee’s attendance at a "National Guard Event" without guard orders was not deemed "necessitated by reasons of service in an uniformed services," and thus the employee forfeited reemployment rights under the Act.3

The term "uniformed services" is broad, including within its ambit all of the usual military forces as well as the Coast Guard, Reserves, National Guard, and "commission corps of the public health service" as well as "any other categorical persons designated by the President in time of war or emergency."4 (Uncle Sam Needs You!)

The USERRA requires that the employee must provide the employer with advance notice of military service. Notice may be written or oral, provided by the employee or an officer of the military, absent "military necessity."5 The Act does not apply to pre-service positions that are "brief or non-recurrent."6 An employee who signed a resignation letter while on active duty with the National Guard for "administrative purposes," but failed to mention the statutory right of reemployment, did not waive re-employment rights pursuant to the USERRA.7

The USERRA is applicable to the cumulative length of service that causes a person’s absence from a position not to exceed five years. The two-week annual training sessions and monthly weekend drills mandated for Reservists and National Guard Members are exempt from the five-year limitation.8

A Veteran’s Obligation to Report Back to Work

A dishonorable discharge disqualifies the employee from the protections of the USERRA.9 The time limit within which the person must report back to work is governed by the Act10 and depends upon the duration of the person’s military service. For example, if the military service was brief (1-30 days), the person must report back to the employer at the beginning of the first regularly scheduled workday. If services last from 31-100 days, an application for re-employment must be submitted no later than 14 days after completion of service. A longer period of service is governed by a 90-day rule. The reporting or application deadlines are extended for up to 2 years for persons who are hospitalized or convalescing as a result of an injury during military service. In the event that a person does not reapply within the required time limits, the employee will be subject to the employer’s rules governing unexcused absences. An Army Reserve member who did not submit an application for reemployment after returning from active duty but only contacted his old supervisor, who subsequently wrote to the employee that he should contact a human resources employee, lost his reemployment rights by failing to follow the employer’s procedure.11

The Act provides that an employer has the right to request that an employee absent for more than 31 days provide documentation showing (1) that the application for reemployment is timely, (2) that the person has not exceeded the 5 year limitation and (3) that his or her separation from service was not disqualified. 12

Timing and Seniority

Employees whose military service lasted 90 days or less shall be "promptly reemployed" in the jobs they would have held but for the military service, as long as they are still qualified. If they are not or cannot be qualified, they are to be reemployed in positions that are the nearest approximation to their prior positions, with full seniority.13 For employees who have been in active service for more than 91 days, they are to receive positions of like seniority status and pay as long as they are either qualified for the job or can become qualified after reasonable efforts by the employer. For employees who cannot become qualified for the prior position or one of like seniority status and pay, they are to receive positions of lesser status and pay that most nearly approximate the prior position, with full seniority. The law provides an "escalator" principle, which requires that each returning service member actually step back onto the seniority escalator at the point the person would have occupied had the person remained continuously employed. For example, if the employee would have been promoted with reasonable certainty absent the military service, the employee would be entitled to that promotion upon reinstatement.

Disabled Veterans

The USERRA provides a scheme for persons with disabilities incurred or aggravated with military service.14 There is also a provision for conflicting reemployment claims.15 Re-employment may be excused if the employer’s circumstances have changed so much that re-employment of the person would be impossible or unreasonable. The accommodation requirement for those with service-connected disabilities may be excused for "undue hardship."16 Also, if prior to leaving for military service, an employee knowingly provides clear written notice of an intent not to return to work after military service, the employee waives entitlement to leaves of absence as well as any benefits.17

Pension and Welfare Benefits

Pensions and retirement benefits which are tied to seniority are given separate and detailed treatment at Sec. 4318 of the USERRA. Although service members cannot be forced to use vacation time for military service, they must, at their request, be permitted to use any vacation time accrued before beginning military service.18

The Act provides for health benefit continuation for persons who are absent from work to serve in the military even when their employers are not covered by COBRA.19 An employee has the right to continue his health plan coverage for up to eighteen months and cannot be required to pay more than 102% of the full premium for the coverage. 20

“Cause” to Terminate

An employee who returns from active duty has protection from subsequent discharge. A re-employed employee may not be discharged "without cause" for one year after the date of reemployment if the person’s military service was in excess of 181 days.21 Those who are absent between 31and 180 days have the "without cause" protection for six months. Persons who serve for 30 or fewer days are not protected by the "without cause" provision but are still subject to Sec. 4311 protection against "discrimination and retaliation."

Discrimination

Employment discrimination because of past, current or future military obligations is prohibited in hiring, promotion, re-employment, termination, and benefits. The USERRA provides that if past, present or future connection with service is a motivating factor in an employer’s adverse employment action against the individual, the employer has committed a violation, unless the employer can prove that it would have taken the same action regardless of the individual’s connection with military service. 22 The burden of proof shifts to the employer once a prima facie case is established. The Act also provides a "retaliation" provision protecting anyone who files a complaint, testifies or otherwise participates in an investigation, whether or not the person has performed military service.23

Enforcement and Private Civil Actions

The U.S. Secretary of Labor is empowered to issue regulations implementing the statutes, and those regulations have been accorded "a measure of weight" by the courts. Re-employment assistance is provided by the Veteran’s Employment and Training Service (VETS) of the Department of Labor. VETS investigates complaints and attempts to resolve disputes.24 A person whose complaint is not successfully resolved by VETS may seek court action through the Attorney General’s office. The Attorney General may file a court action on complainant’s behalf if the action is "meritorious."25

The USERRA provides for a private cause of action if a complaint is not filed by the Attorney General on behalf of a complainant. xxv The Act provides for an award of back pay which may be doubled for violations deemed to be "willful." 26 There is no statutory definition of the term "willful," and the ADEA definition of "knowingly or recklessly in disregard of the law" seems applicable by virtue of the Act’s legislative history. Attorney’s fees, expert witness fees, and litigation expenses are available to a successful plaintiff "at the Court’s discretion."27

An employee can also pursue a claim of "harassment" on account of prior service in the uniformed services, if the harassment is so pervasive as to alter the conditions of employment and create an abusive working environment.28 Discriminatory motivation under the Act may be reasonably inferred from circumstantial evidence, including the proximity of time between the employee’s military activity and the adverse employment action, inconsistencies amongst com-parators, expressions of hostility, and disparate treatment.28 The employee must make an initial showing that the military status was at least "a motivating or substantial factor" in the adverse action. The burden then shifts to the employer to prove that the action would have been taken despite the protected status.29 A prima facie case can be established if the employer relied upon, took into account, considered or conditioned its decision on the employee’s military-related absence.30 An employee was deemed governed by the retaliation provision of USERRA when he made internal complaints of activity he perceived as USERRA discrimination.31

When a neutral employment policy such as a promotional exam is administered on a particular date to all employees, it may constitute USERRA discrimination to refuse to allow veterans away on leave to take a make-up exam upon their return from service.32 A police officer stated a viable cause of action for retaliation when he alleged that the Department refused to accommodate his taking a promotional exam which conflicted with service in the Army Reserve, and then participated in a retaliatory and willful investigation calculated to deprive him of promotional opportunities.33 The evidentiary burdens set out in the Act shift the burden of persuasion, as well as production, to the employer.xxxi The burden shift to the employer is applicable in both the "dual motive" case and in the "pretext" case.33

For additional information see www.dol.gov/vets and then find "The USERRA Advisor." Let’s hope our returning servicemen and women receive a warm welcome home. If the former employer does not extend such a welcome, the returning service person may have a viable cause of action under the USERRA.

1 38 U.S.C. §§ 4301-4333.

2 38 U.S.C. § 4303 (13).

3 Leisek v. Brightwood Corp., 78 F.3d 895 (9th Cir. 2002).

4 38 U.S.C. § 4303 (16).

5 38 USC § 4312 (a)(1).

6 38 USC § 4312 (d)(1)(C).

7 Wrigglesworth v. Brumbaugh, 121 F.Supp.2d 1126 (W.D. Mich. 2000).

8 38 USC § 4312 (e)(3).

9 38 USC § 4304.

10 38 USC § 4312 (e).

11 McGuire v. United Parcel Service, 152 F.3d 673 (7th Cir. 1998).

12 38 USC § 4312 (f).

13 38 USC § 4313 (a)(4).

14 38 USC § 4313 (a)(3).

15 38 USC §§ 4313 (b)(1), 2(a).

16 38 USC § 4312.

17 38 USC § 4316.

18 38 USC § 4316 (d.)

19 38 USC § 4317 (a)(1).

20 38 USC § 4317.

21 38 USC § 4316 (c)(1).

22 38 USC § 4311 (c).

23 38 USC § 4311 (b).

24 38 USC §§ 4321, 4322.

25 38 USC § 4323 (a)(1).

26 38 USC § 4323 (d)(1)(C).

27 38 USC § 4323 (h)(2).

28 Petersen v. Department of Interior, MSPB 71 MSPR 227 (1996).

29 Sheehan v. Department of Navy, 240 F.3d 1009 (Fed. Cir. 2001).

30 Robinson v. Moore Chevrolet-Buick, Inc., 974 F.Supp. 571 (E.D.Tex. 1997).

31 Gagnon v. Sprint Corp., 284 F.3d 839 (8th Cir. 2002).

32 Fink v. City of New York, 129 F.Supp.2d 511 (E.D. N.Y. 2001).

33 Brandsasse v. City of Suffolk, 72 F.Supp.2d 608 (E.D. Va. 1999).

Glenn R. Gaffney graduated cum laude from the Southern Illinois University School of Law in 1981. From 1990 to 1994, he was the Chairperson for the DCBA Labor & Em-ployment Law Committee, and during 2004-2005, he will chair the ISBA Labor & Employment Law Section Council. He primarily represents employees in employment litigation in state and federal court.


 
 
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