By Mark Bunnell

Apr. 11, 2008

Key Components of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)

USERRA applies to all employers

  • Unlike other federal labor and employment laws that exempt smaller business, USERRA applies to all public and private employers in the U.S., regardless of size.

USERRA goes beyond National Guard or reserve duty

  • Although generally understood as applying to individuals called up for Guard or reserve duty, employees protected by USERRA include members of and applicants for service in the armed forces (Army, Navy, Air Force and Marines), commissioned corps of the Public Health Service and certain types of service in the National Disaster Medical System.

Re-employment rights

  • A covered employee returning from a leave for military service has a nearly absolute entitlement to re-employment, even if this requires displacing the person who has taken over the employee’s position during his or her leave.

  • Under the so-called “escalator principle,” a returning service member does not step back onto the employment escalator at the point where he or she stepped off. Instead, the employee steps back into the position that he or she would, with reasonable certainty, have obtained but for the interruption for military service.

  • If the returning employee is no longer qualified for his or her escalated position, the employer must make reasonable efforts to help the employee become qualified.

Continuation and reinstatement of benefits

  • An employee covered by a job-related health plan may elect to continue coverage while performing military duties. The cost of extending the coverage may fall entirely on the employee, provided the period of military service is more than 30 days.

  • A returning employee is entitled to seniority and other rights and benefits earned prior to leaving for military service, as well as additional seniority and rights and benefits that h33344444444e or she would have attained if continuously employed. For example, a returning employee has the right to continue in his or her employer’s pension plan without loss of service time, with military-service time being counted toward determinations of eligibility in the pension plan, in vesting and in the accrual of benefits.

Protection from discharge

  • One unique aspect of USERRA is that it affords an employee returning from service the protection of a “for cause” discharge standard for a period of time after returning from military service, even if the employee has no employment contract and would otherwise be considered an at-will employee

Prohibition against discrimination or retaliation

  • USERRA prohibits discrimination on the basis of status as a member of, or applicant to, a uniformed service. Job applicants may not be denied employment based on such status. Nor may employees be denied re-employment, retention in employment, promotion or any benefit of employment on the basis of service in the military or application for such service.

  • USERRA also prohibits retaliation against employees who have taken an action to enforce a protection afforded under USERRA or to exercise a right under the act.

Recent cases of interest

Woodall, McMahon & Madison v. American Airlines

    In this, the first class action brought by the Department of Justice under USERRA, the named plaintiffs are pilots for American Airlines. Mark Woodall and Michael McMahon each took two weeks of military leave for annual reserve training in 2001. Paul Madison took three weeks of military leave when he was deployed to Turkey in 2002 as part of Operation Northern Watch.

    The Department of Justice argues that American violated, and continues to violate, USERRA because under American’s collective bargaining agreement with its pilots, pilots on military leave are denied their rights to bid on flight schedules and to accrue non-seniority benefits, such as vacation time and sick leave, while pilots on non-military leave are permitted to accrue such benefits.

    In October 2006 and February 2007 decisions, U.S. District Judge Barbara Lynn of the Northern District of Texas denied American Airlines’ first and second motions to dismiss the case for failure to state a claim. On November 30, 2007, the court granted an extension of pretrial deadlines to facilitate the parties’ settlement negotiations, and as of early April 2008, those negotiations were ongoing, as was discovery in the case.

Moore v. Epperson Underwriting Company (D. Minn.)

    In June 2004, Timothy Moore was recalled to active duty from reserve status. He served as a weapons platoon sergeant in Iraq from September 2004 to March 2005. Upon his return, Moore was diagnosed with Crohn’s disease and primary schlerozing cholangitis, conditions that the Department of Veterans Affairs found to be service related. During late 2005, Moore was absent from work as a result of surgeries for his conditions and complications from the surgeries. His employer required him to use accrued vacation time for these absences, which Moore complained was prohibited by USERRA. Shortly after conducting an investigation of his complaint, Moore’s employer terminated him for alleged improper expenses and other issues that were uncovered during the investigation.

    Moore argued that his employer’s failure to allow him to use accrued vacation time was discrimination under USERRA. In an August 2007 decision, U.S. District Judge Ann Montgomery of the District of Minnesota dismissed Moore’s discrimination claim, concluding that USERRA protects absences for military service, but does not protect absences for medical treatments, even if the treatments are for a condition relating to military service. At the same time, the court allowed Moore’s claim that his employer retaliated against him for asserting his rights under USERRA to go forward. Noting that the alleged improper expenses and other issues did not surface until after Moore asserted his rights under USERRA, and that his termination followed his assertion of his rights by only a month, the court concluded that Moore’s retaliation claim should be decided by the jury. Shortly thereafter, the employer agreed to reach a settlement with Moore.

    This case represents a growing trend in USERRA litigation, where an employee may not be able to state an actionable claim under USERRA for improper discharge or discrimination, but will nonetheless be able to proceed on a retaliation claim because of the employer’s response to his or her complaints.

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