Because of the way the statute is drafted and how courts have interpreted it, employers of current members of the Armed Forces and veterans can sometimes find themselves with unexpected legal exposure under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). The statute imposes various obligations on employers with respect to members of the U.S. military returning to work and also prohibits discrimination against employees and potential employees based on their military service. As 2014 comes to a close, a couple of USERRA cases from this year remind employers of the intricacies of USERRA compliance.
In Dorris v. TXD Services, Inc., 753 F.3d 740 (8th Cir. 2014), an employee, Jonathan Dorris, informed his employer, TXD, that he was scheduled to be deployed overseas. Mr. Dorris reported for military training the next month and left for Iraq shortly afterwards. During his deployment, TXD sold all of its assets to another company, Foxxe. TXD provided to Foxxe a list of all “current or active employees,” all of whom were then hired by Foxxe. TXD failed, however, to include Dorris’s name on the list, claiming that he was not a “current or active employee” at the time because he was deployed overseas. The Eighth Circuit Court of Appeals found a question of fact as to “whether Dorris was denied a benefit of employment when TXD did not include him on the asset sale list.” Accordingly, the district court’s grant of summary judgment for TXD was reversed and the case remanded.
In Tuten v. United Airlines, Inc., No. 12-cv-1561-WJM-MEH, 2014 U.S. Dist. LEXIS 68336 (D. Colo. May 19, 2014), United based its contributions to the pension accounts of its pilots in the military on the minimum number of flight hours required under the collective bargaining agreement, rather than in accordance with USERRA’s requirement that such contributions be made “on the basis of the employee’s average rate of compensation during the 12-month period immediately preceding such period.” The case settled for more than $6 million, plus more than $1 million in attorneys’ fees. The settlement agreement was approved by the court on May 19, 2014.
A few other of USERRA’s unique provisions include the fact that there is an explicit lack of any statute of limitations (38 U.S.C. § 4327(b), and the statute applies to all private and public employers irrespective of size (20 C.F.R. § 1002.34(a)).
USERRA differs from other employment discrimination statutes in numerous and significant ways. In light of these distinctions, the statute’s liberal construction, and the potentially high stakes, employers must proceed with caution whenever an issue arises involving an employee who is currently serving in the military or is a veteran.