In a case of first impression, the United States First Circuit Court of Appeals held that in cases brought under the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 et seq., the burden is on the employer to show that the adverse employment action would have been taken regardless of the employee's military service. The court applied a two-pronged burden-shifting analysis, in which:

the employee must only make an initial showing that military service was at least a motivating or substantial factor in the employer action; and the employer then must prove, by a preponderance of the evidence, that the action would have been taken in the absence of the employee's military service.

Importantly, this imposition of the burden of proof on the employer is markedly different from that of the three-pronged burden-shifting analysis in Title VII actions, in which the burden of proof is always on the employee. [See Velázquez-Garcia v. Horizon Lines of Puerto Rico, Inc., No. 06-1082, 2007 WL 1614 (1st Cir. Jan. 4, 2007).]

Please see this Mintz Levin advisory for the First Circuit's decision and a list of action items for employers.