EMPLOYMENT LAW

Military Leave: USERRA Compliance Reminder and Update

April 2007

Laurel A. Van Buskirk*

As the country faces an increased deployment of troops abroad, it is imperative that employers continue to be aware of and meet their obligations under the Uniformed Services Employment and Reemployment Act of 1994 (USERRA). This article reviews some compliance reminders for the Uniformed Services Employment and Reemployment Act of 1994 (USERRA) and discusses a recent First Circuit case changing the burden for employers facing a discrimination claim under USERRA.

All employers, regardless of size, must comply with the provisions of USERRA. This means that as long as a company has one employee, it must be familiar with and comply with the requirements of USERRA.

USERRA sets forth a variety of employer obligations relative to employees taking military leave, including reemployment rights and rules regarding benefits entitlements during a USERRA protected military leave of absence.

USERRA also prohibits discrimination and retaliation against any employee or applicant for employment because of current or former application for, or membership in, uniformed service.

From a compliance perspective, all employers should be familiar with the regulations promulgated by the US Department of Labor in December 2005. These regulations were aimed at explaining and clarifying employer obligations under USERRA and can be found at: www.dol.gov/vets/.

For those employers facing USERRA compliance issues for the first time, and for those employers that will be revisiting their USERRA obligations in the coming months, these regulations contain valuable guidance.  

Some of the issues addressed in the regulations are outlined below:

Applicant Protection

Applicants for employment are protected by USERRA's anti-discrimination provisions. Employment cannot be denied on the basis of the applicant's membership, application for membership, performance of service, obligation service in the uniformed services, or for taking any action to enforce a protection afforded to any person under USERRA. Withdrawal of an offer of employment because the applicant is called into service is prohibited discrimination.

Employee Notice

An employee or representative of the military service must generally provide advanced notice of an employee's need for military leave. (Although the regulations do not provide for a specific time period, an employee should provide notice as far in advance as is reasonable under the circumstances.) The notice of the need for military leave can be verbal or written. Employees however may be excused from giving advanced notice if prevented by military necessity, or otherwise impossible or unreasonable under all circumstances.

Preparing for Military Service

Employees taking protected military leave may take time to travel safely to the uniformed service site and arrive fit to perform service. This means that depending on the circumstances, the employee make take time to rest and/or to arrange affairs before reporting for duty and that an employee need not immediately commence military service after leaving his/her employment for protected military leave. There is no fixed time period for these pre-service activities; instead the DOL noted that what time may be necessary will vary depending on the individual circumstances of the military service, including the expected duration, the amount of notice received by the employee, and the location of service.

Reemployment Rights Not Waivable

An employee cannot waive his/her USERRA reemployment rights in advance of his/her release from military service.   This means, that even if an employee tells his/her employer at the start of covered military leave that s/he does not intend to seek reemployment or the employee seeks alternative employment while on military leave, s/he has not waived his/her USERRA rights. Furthermore, employers cannot require employees to state whether or not they intend to return to work before the employee has completed military service.

Prompt Reinstatement

The regulations provide that "absent unusual circumstances," reemployment [of a returning service member] must occur within two weeks of the employee's application for employment." If the employee is returning from weekend duty, reemployment must be on the next regularly-scheduled work day. Prompt reinstatement following several years of active duty may require more time.

Just Cause Termination Only

Depending on a returning employee's length of military service, after reemployment, s/he may be terminated only for cause for a period of six (6) months (if service was more than 30 days but less than 180 days) or 12 months (if service more than 180 days).

Rate of Pay Upon Return

Upon reemployment, an employee's rate of pay must be that which s/he would have attained in that position, given his/her job history, as though s/he had been continuously employed during the period of military leave.

The rate of pay must also reflect and be consistent with any policies, practices or procedures of the employer including, but not limited to, rate of pay provisions in a collective bargaining agreement, employment contract, personnel policy, etc.

Disabled Employees

A returning employee who was disabled or a disability was aggravated during military service is entitled to the same extent as any other individual, to the escalator position s/he would have attained but for uniformed service. The regulations require that the employer make reasonable efforts to help the employee become qualified to perform the duties of his/her reemployment position, and implement ADA reasonable accommodation measures.

Notice Requirement

Employers should also be aware that they are required to give a notice of the rights, benefits and obligations of covered employees and employers under USERRA to persons entitled to rights and benefits under USERRA.   The DOL has issued a notice entitled "Your Rights Under USERRA", and employers may post the notice where employee notices are customarily placed, or may provide the notice to employees in other ways, as long as they ensure that the full text of the notice is provided (e.g., by handing or mailing out the notice, or distributing the notice via electronic mail). The required notice may be downloaded as a PDF from the United States Department of Labor web site.  

USERRA Case Addressed by First Circuit

As the number of troops returning home increases, USERRA cases will be more frequently faced by employers and Courts. In a decision that came down in January, the U.S. Court of Appeals for the First Circuit (which includes New Hampshire) addressed for the first time what a plaintiff needs to show in order to prove a discrimination claim under USERRA in Velazquez-Garcia v. Horizon Lines.

Following the lead of other Circuit Courts around the Country, the First Circuit held that a plaintiff bringing a USERRA discrimination claim "need only show that military service was 'a motivating factor' in order to prove liability" unless 'the employer can prove that the [adverse employment] action would have been taken' regardless of the employee's military service."

This two-prong analysis means that after an employee makes an initial showing that military status was at least a motivation or substantial factor in the employment action, the burden shifts to the employer to prove, by a preponderance of the evidence, that the stated reason for the employment action was not pretext, but that the action would have been taken in the absence of the employee's military service. Thus, once the employee makes his/her showing, the only way for the employer to avoid liability is to prove an affirmative defense that they would have taken the same action, regardless of the employee's military status.

This is a different burden of proof standard than applied to most other types of cases where the burden always remains with the employee to show that the employer's stated reason for the employment action is actually pretext for some other, discriminatory reason.

In Velazquez-Garcia v. Horizon Lines, Velazquez claimed that his firing was discrimination due to his military service. His employer, Horizon alleged that the employee was fired because his side business of cashing checks for other employees for a fee violated Horizon's Code of Business Conduct.

The First Circuit determined that Velazquez had set forth sufficient evidence to make his initial showing that his military service was a motivating factor in his dismissal. However, even though the Court determined that   Horizon's alleged reason for firing Velazquez "may well be a fireable offense" under Horizon's policies..." this was not enough for summary judgment. Instead, the Court stated that Horizon would have also needed to show that it would have fired the employee regardless of his military status.

The Court determined Horizon did not meet this burden and pointed to specific "questionable" factors that it deemed cast sufficient doubt as to whether Horizon would have fired Velazquez in the absence of his military service, including: Horizon's failure to administer warnings prior to termination; failure to give Velazquez a copy of the Code, not summarily firing other employees with similar code-violations, and the length of time in which Velazquez had been engaged in the check-cashing business in plain site of Horizon's place of business.

Because of the heightened burden on employers facing USERRA discrimination claims, employers need to exercise additional care when faced with making employment decisions affecting employees covered by USERRA.   Employers will need to critically analyze the individual circumstances surrounding the employment decision, including relevant documentation, whether procedures were stringently followed, and/or other factors that may be used to undermine the employer's burden to show the decision would have been made regardless of the employee's military status.

* Laurel Van Buskirk is admitted in New Hampshire and Maine.

 

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