While Veteran-Friendly, USERRA’s Anti-Discrimination Provision Still Requires Adverse Employment Action For Employer Liability

by Orrick - Global Employment Law Group
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With Memorial Day around the corner, it is an appropriate time for employers to review their management of employees who are members of the military.

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, prohibits discrimination against employees and potential employees based on their military service and imposes certain obligations on employers with respect to employees returning to work after a period of service in the U.S. military.  USERRA differs from other employment laws in ways that make it quite veteran/employee-friendly, including:

  1. No Statute Of Limitations: USERRA has no statute of limitations of any kind for claims that accrued after October 10, 2008 (and claims that accrued after October 10, 2004 may be timely as well). See 38 U.S.C. § 4327(b); 20 C.F.R. § 1002.311.
  2. No Minimum Employer Size: USERRA applies to all public and private employers, irrespective of size.  20 C.F.R. § 1002.34(a).
  3. No Termination Without Cause: USERRA creates a “for cause” termination standard for employees who return to work after one month or more of military service.  If an employee’s service was between thirty (30) and one-hundred and eighty (180) days, he or she may not be terminated without cause for up to six (6) months following his or her return to work.  And employees returning from more than one-hundred and eighty (180) days of service are afforded this protection from termination for a full year.  See 38 U.S.C. § 4316(c)(1) and (2); 20 C.F.R. § 1002.247(a) and (b).

Additionally, consistent with treatment of the World War II and Vietnam Era predecessors to USERRA, courts universally construe USERRA in favor of veterans.  See, e.g., Rivera-Melendez v. Pfizer Pharms., LLC, 730 F.3d 49, 54 (1st Cir. 2013) (“USERRA’s provisions should be broadly construed in favor of military service members as its purpose is to protect such members”) (internal quotations omitted); Jbari v. District of Columbia, No. 16-cv-2247 (TSC), 2018 U.S. Dist. LEXIS 55121, at *10 (D.D.C. March 31, 2018) (“USERRA ‘must be broadly construed in favor of its military beneficiaries’”) (citing Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299, 303 (4th Cir. 2006)).  However, this favorable construal is not without limit.

Earlier this month, the Third Circuit Court of Appeals in Canete v. Barnabas Health Sys., No. 17-1034, 2018 U.S. App. LEXIS 9035 (3d Cir. April 11, 2018) reiterated that, despite the liberal statutory construction afforded veterans, a tangible adverse employment action remains a prerequisite to establishing a discrimination claim under USERRA.  In Canete, the plaintiff was a retired lieutenant colonel and a registered nurse.  He asserted a USERRA discrimination claim based on various alleged workplace mistreatment, including that: (1) he missed a lunch break due to his supervisors; (2) a co-worker once noted that the plaintiff was the only employee who did not know how to use the office printer; (3) the plaintiff vaguely recalled some co-workers commenting that he should retire; (4) the plaintiff was retrained following several performance incidents; and (5) on one occasion, when the plaintiff answered a phone call with “Colonel Canete,” the junior co-worker on the other line giggled.  The court held that these alleged incidents “do not raise a genuine question as to whether [plaintiff] suffered a serious, tangible change in employment status” and affirmed the district court’s dismissal of the USERRA claim.

In several ways, USERRA’s applicability and protections go well beyond employment law statutes, such as Title VII, the Family and Medical Leave Act (FMLA), and the Americans with Disabilities Act (ADA).  But USERRA’s liberality is not limitless.  Employers should ensure that Human Resources and managers understand the broad applicability of USERRA and the full range of obligations with regard to veterans.  In some cases, compliance with the complexities of the statute may require advice of legal counsel.

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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