Don’t Dawdle in USERRA’s World: Fourth Circuit Affirms USERRA Violation for Delayed Reemployment

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How long do you have to reinstate an employee following military leave? In Harwood v. American Airlines, the Fourth Circuit found that a delay of six or eight weeks was too long. The Uniformed Services Employment and Reemployment Act (USERRA) says employers must reinstate an employee returning from military leave and if, as in Harwood, there is some obstacle to the employee’s return to the old job, you cannot linger too long in placing him or her in an alternative position or you may be on the hook for back wages.

Background

Thomas Harwood was a commercial pilot for American and was also a major general in the Air Force Reserve. From June 2013 through August 31, 2015, Harwood was on military leave. Before the end of his tour he informed American of his intent to return and requested he be assigned as a domestic flight captain out of LaGuardia Airport. American agreed and let Harwood know that his retraining would begin once he reported back to work on September 1.

In preparation for his return to American, Harwood had to obtain a medical certification from the FAA. Because he had been diagnosed with atrial fibrillation during his military tour, the FAA denied the certification. Harwood sought a waiver and submitted all the requested documentation. He informed American of the problem on August 20, 2015, said that he still wanted to be reemployed as a pilot, and suggested American allow him to take his 854 hours of accumulated sick leave until he obtained the clearance. American responded that it could not reemploy him as a pilot without the medical certificate or a waiver. In early September 2015, American told Harwood that it was willing to put him “back to work in a reasonable time” but since he was not medically qualified to fly it would explore reasonable accommodations to get him back to his position as a line pilot. If nothing could be done to return him to flying status, American would “explore other paths.”

At that point, Harwood retained counsel. On October 1, Harwood’s lawyer informed American that Harwood’s goal was to be reemployed as quickly as possible to get access to his 854 hours of sick leave. If he could not be reemployed as a pilot because of the medical clearance, Harwood believed he should be placed in a position of comparable status and pay. American responded on October 22 (about six weeks after Harwood was to have returned to work), offering to extend his military leave until the medical waiver came through or, alternatively, to create a position appropriate for his status and with equal pay. Harwood declined both options and spent the next three months on military active duty (for which he received military pay). On January 25, 2016 (a little over five months after his original deployment ended), Harwood accepted American’s offer for the custom position. On that same day, Harwood received his medical waiver so American reassigned him as a domestic flight captain the next day.

All’s well that ends well – right? Not so fast. Over a year later, in April 2017, Harwood sued American under USERRA alleging that it had (1) discriminated against him based on his military status and (2) failed to reemploy him promptly when he returned on August 31, 2015.

USERRA Requirements

The Fourth Circuit noted that USERRA “was enacted to protect the rights of veterans and members of the uniformed services” and therefore “must be broadly construed in favor of its military beneficiaries.” Under USERRA’s anti-discrimination provision in Section 4311 [38 U.S.C. § 4311], an employer cannot discriminate against a servicemember employee by taking any adverse action “on the basis of” the service, where the service was a “motivating factor” in the employment action.

According to its Section 4312, USERRA provides reemployment rights for a returning servicemember if:

  1. The returning servicemember gives advance written or verbal notice of uniformed service;
  2. The service time does not exceed five years; and
  3. The servicemember submits an application for reemployment.

According to Section 4313, once qualified for reemployment, the employee is to be “promptly” reemployed. The default reemployment position is the “escalator position” – where the employee would have been “or a position of like seniority, status and pay.” If the returning servicemember is injured or disabled during service, he or she is to be reemployed “in any other position which is equivalent in seniority, status and pay.” USERRA’s interpreting regulations unhelpfully define prompt reemployment to mean “as soon as practicable under the circumstances of each case.”

District Court Ruling 

The district court dismissed Harwood’s discrimination claim but granted judgment to him on his claim that he was not promptly re-hired. The court awarded Harwood his backpay with interest but offset by the amounts he received from the Air Force during the period of delay. The district court also found that the airline had not acted willfully, so it did not award liquidated damages. The court found that any injunction was not warranted based on this one-time misunderstanding. Both Harwood and American appealed.

Fourth Circuit Agrees That American Did Not Discriminate…

The appellate court agreed that Harwood’s discrimination claim was properly rejected based on the lack of discriminatory intent, which was made up of some scattered comments made 15 years earlier about Harwood’s military service. Further, the court held that American’s actions were not willful in the sense of any anti-military animus. The court affirmed the non-discrimination dismissal even though it noted that the district court should have construed the statute more broadly because it applies to reemployment decisions and not just after-reemployment actions.

But American Was Too Slow to Offer an Alternative Position

The court agreed with Harwood and the lower court that American had not acted promptly enough to identify and place him in an appropriate alternative position. Harwood notified American of his flying limitations on August 20 and was supposed to return to work on September 1. American did not actually offer him the alternative position until October 22, over two months after learning that he would need to be rehired in a non-pilot position.  In the court’s estimation, American had nearly two weeks to figure out the alternative position for him before he was to start, and then it was another six weeks after that before American offered the alternative position. Although the court found American violated USERRA, it agreed with the district court that the violation was not willful, based on the immediate agreement to rehire Harwood and efforts to accommodate his requests.

The court also reexamined the damages awarded, concluding that Harwood should receive backpay only for the period of September 1 (his planned return to work date) through October 22, when the alternative position was offered (if truly an equivalent position). The court found Harwood was not entitled to backpay after October 22 because it was Harwood’s decision to not accept the offered position until January 25. The case was remanded for the trial court to determine whether the position offered on October 22 was truly equivalent for purposes of USERRA.

Lesson: USERRA Requires Prompt Attention

USERRA requires a lot from employers. In this case, American appeared to want to do the right thing and prepared for Harwood’s return, but it should have moved more quickly when there were problems. Employers should be keenly aware of their employees who are or will be entitled to USERRA protections and act promptly when curveballs are thrown.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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