Veterans Returning to Work After Military Service May Not Be Discharged Except “For Cause”

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, imposes various obligations on employers with respect to members of the U.S. military returning to their civilian workplace.  USERRA differs from other employment laws (e.g., Title VII) in multiple respects.  For example, USERRA applies to all public and private employers, irrespective of size.  Therefore, “an employer with only one employee is covered….” 20 C.F.R. § 1002.34(a).  In addition, USERRA contains an “escalator” requirement that returning service-members are reemployed in the job that they would have attained had they not been absent for military service with the same seniority, status, and pay, as well as other rights and benefits determined by seniority. See 20 C.F.R. § 1002.191.  Also, 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 probably are timely as well). See 38 U.S.C. § 4327(b); 20 C.F.R. § 1002.311.

Another distinction is that USERRA modifies at-will employment by creating a “for cause” standard of discharge for veterans who return to work after a month or more of military service.  If a veteran’s service was between thirty (30) and one-hundred and eighty (180) days, he or she may not be discharged except for cause for six (6) months following their return to work.  Veterans returning from more than one-hundred and eighty (180) days of service are afforded the same protection from discharge for one year. See 38 U.S.C. § 4316(c)(1) and (2); 20 C.F.R. § 1002.247(a) and (b).  To meet the burden—which is the employer’s—of showing “cause,” an employer must produce evidence demonstrating, not only that it was reasonable to discharge the employee for the conduct at issue, but that the employee had notice that the conduct would constitute cause for discharge. See 20 C.F.R. § 1002.248(a). 

Recently, in Starr v. QuikTrip Corp., No. 15-5079, 2016 U.S. App. LEXIS 12972 (10th Cir. July 13, 2016), the Court of Appeals for the 10th Circuit reversed the district court’s grant of summary judgment for the employer on a discharged veteran’s USERRA claim, finding that the “for cause” standard was not met by the employer.  Although the employer had a written policy requiring employees to provide notice of their lateness or inability to work a shift within two-hours of the start time of the shift, a manager had provided verbal assurance to the veteran that notice of a missed shift by the following working day would be sufficient.  However, the veteran was discharged when he did not on three (3) occasions provide notice in compliance with the written policy.  The court found that “a rational jury could find that the personnel manager’s promise to excuse a missed shift as long as [veteran] called before the next working day deprived [veteran] of notice that violating [employer’s] written policy could result in termination.”  

An employer’s nondiscrimination obligations under USERRA go well beyond seemingly similar obligations under other employment law statutes (e.g., ADA, FMLA).  Employers need to make sure that Human Resources and managers understand the full range of obligations with regard to returning veterans and perhaps consider a coordinated or centralized approach to their reemployment.  In some cases, compliance with the complexities of the statute may require advice of counsel.