Despite Veteran-Friendly Construction, Liability Under USERRA’s Anti-Discrimination Provisions Still Requires Adverse Employment Action

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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.  With a large number of service members currently deployed and increased intervention against ISIS potentially enlarging these numbers, employers’ treatment of employees who are members of the military continues to remain an important issue.

There are several aspects of USERRA that differ from other employment law statutes in ways that make it quite veteran/employee-friendly, including:

  1. No Minimum Employer Size: USERRA applies to all public and private employers, irrespective of size.  See 20 C.F.R. § 1002.34(a) (providing that “an employer with only one employee is covered….”).
  2. No Statute Of Limitations: USERRA has no statute of limitations. See 38 U.S.C. § 4327(b); 20 C.F.R. § 1002.311.
  3. “For Cause” Discharge Standard: USERRA creates a “for cause” standard of discharge for veterans who return to work after one 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 without cause for up to six (6) months following his or her return to work.  Veterans returning from more than one-hundred and eighty (180) days of service are afforded this protection from discharge for a full year.  See 38 U.S.C. § 4316(c)(1) and (2); 20 C.F.R. § 1002.247(a) and (b).  To meet its burden 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).

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); McGuire v. United Parcel Serv., 152 F.3d 673, 676 (7th Cir. 1998) (“USERRA is to be liberally construed in favor of those who served their country”); Brown v. Con-Way Freight, Inc., No. 14 C 2055, 2016 U.S. Dist. LEXIS 28420, at *9 (N.D. Ill. March 7, 2016) (same).

However, this liberal construction is not without limit.  Earlier this year, a Colorado court reiterated that, despite the liberal statutory construction afforded veterans, “[a]n adverse employment action under USERRA imposes the same materiality requirement found in other civil rights statutes addressing employment discrimination.”  Perez v. Denver Fire Dep’t, No. 15-cv-00457-CBS, 2016 U.S. Dist. LEXIS 10114, at *15 (D. Colo. Jan. 26, 2016) (citing Crews v. City of Mt. Vernon, 567 F.3d 860, 869 (7th Cir. 2009)).  The veteran plaintiff in Perez failed to sufficiently allege a claim for discrimination under USERRA where he cited a single internal communication concerning his military service that was not disciplinary in nature.  The court held that more was required.  Specifically, “the Complaint [did] not allege any facts that suggest[ed] Defendant attempted to deny Plaintiff reemployment after his upcoming military training, a promotion, or any benefit of employment, through the Internal Correspondence letter or any other conduct.”  Id. at *16-17.

USERRA’s applicability and protections unquestionably go beyond seemingly similar employment law statutes, such as Title VII, the Family and Medical Leave Act (FMLA), and the Americans with Disabilities Act (ADA).  But the liberality of its application is not boundless.  Employers need to make sure 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.