USERRA on Employers’ Radar

After celebrating its 25th anniversary in October, the federal antidiscrimination law protecting military members is drawing attention.

Colorado U.S. Attorney Jason Dunn announced last month that his office brought a civil complaint against Walmart Corp. on behalf of a Navy reservist, who says the company rejected her for a job because she required upcoming military leave. 

The Justice Department brought the claim under the Uniformed Services Employment and Reemployment Rights Act, which protects employees from an adverse employment action based on their military status or required military leave.

More recently, federal appeals courts have issued new opinions that illuminate USERRA issues for employers, with the 10th Circuit Court of Appeals weighing in on a case involving the “cat’s paw” theory of liability.

Together, the developments shine a light on the antidiscrimination law even as employers see a steady decline in USERRA complaints.

Tracing its roots to World War II and updated in 1994, USERRA prohibits employers from taking adverse action against an employee based on their military service. The law comes up most often in cases involving members of the National Guard or reserve forces, who must request leave from work when they’re activated for duty or must train. USERRA applies to almost all U.S. employers regardless of size, and the DOJ and Department of Labor coordinate to enforce it.

The DOJ on Nov. 1 filed a lawsuit against Walmart on behalf of Lindsey Hunger, a Naval petty officer third class who claims one of its stores unlawfully denied her “initial employment” under USERRA. Hunger, who also teaches third grade, sought a seasonal job at a Grand Junction Walmart so she could have income over the summer in 2016, according to the complaint.

During a phone conversation with a Walmart recruiter, Hunger told the recruiter she’d need two weeks off for her annual Naval Reserve drilling in San Diego. According to the complaint, Hunger was told, “summer was a busy time at Walmart, the store needed someone who would be there,” and that Walmart couldn’t hire her.

Because she was on public assistance and had to document a reason for the rejection, Hunger contacted the recruiter again to confirm that it was due to her upcoming military leave. When the recruiter confirmed, Hunger claimed that was a violation of her USERRA rights. The recruiter said she didn’t know what USERRA was, according to the lawsuit.

Capt. Sam Wright (ret.), a former Navy Reserve JAG who helped draft the 1994 update to USERRA, said most military members have heard of USERRA, but they might often have misconceptions about their rights and obligations under the statute. Wright, who who has written more than 1,500 law review articles on USERRA for the Reserve Officers Association, said he believes more employers are cognizant of USERRA than they might let on. “They say they’re not aware of it, but sometimes I think they are aware of it, and they think they can get away with violating it.”

USERRA plaintiffs stand to gain pecuniary damages from a violation, such as lost wages and benefits. But employers may be subject to liquidated damages on top of that if the violation is willful, and the court may order them to pay attorneys’ fees. “That can be many orders of magnitude greater than the damages,” Wright said.

The statute doesn’t just apply in situations involving military leave. A recent 10th Circuit USERRA decision concerned a Navy reservist who claims she was declined an interview for a promotion because of her supervisor’s anti-military leanings. A panel in the case, Greer v. City of Wichita, ruled in the plaintiff’s favor Dec. 3, overturning a summary judgment order because a jury could find that the interview denial was driven by the plaintiff’s military status. 

The plaintiff, Anjela Greer, was a security guard at the Wichita Art Museum who applied for an operations supervisor position there. 

She and one other person applied, and the city employee who screened the applications didn’t advance Greer to the interview stage. Greer claimed that the museum’s executive director “harbored anti-military animus and blocked any promotions for Ms. Greer while she remained in the military,” according to the opinion.

The 10th Circuit found Greer’s evidence of the animus compelling, including Greer’s testimony that the executive director made “disparaging comments” about her military service. When Greer notified her about her annual two-week leave, the executive director allegedly said, “[C]an’t they reschedule that? Don’t they know you have a real job?” Greer also said that when she learned of her interview rejection, she confronted the screening employee for an explanation, who then blamed the rejection decision on pressure from the executive director.

Wright noted that a USERRA plaintiff doesn’t have to show that the military leave or status was the sole reason for an adverse action — only that it was a motivating factor.

Wright said USERRA violations that arise from anti-military animus, like in the Greer case, as opposed to leave accommodation, are rare. In most cases, he said, “the employers’ or the supervisors’ objection is just based on the inconvenience [of military leave] and sometimes expense.”

In a Dec. 4 decision out of the 7th Circuit confirmed that USERRA protections apply to National Guard members even if their leave is ordered by a state authority. 

In Mueller v. City of Joliet, a police officer sued his city employer under USERRA because when the state of Illinois activated him for National Guard duty to serve on an anti-drug task force, the city forced him to use vacation time and unpaid leave to cover his absence.

Employees can file a USERRA complaint with the DOL’s Veterans Employment and Training Service, which investigates the complaint. The number of new USERRA claims VETS receives each year is steadily declining; it 917 in fiscal year 2018 compared to 1,286 in FY 2014.

If VETS concludes a USERRA claim has merit, it can refer it to the Justice Department. The DOJ can then opt to take over the case and sue the employer, which is what happened with the Walmart case. But in most cases, plaintiffs bypass the DOL/DOJ process altogether and take the employer straight to court. 

Unlike Title VII of the Civil Rights Act, USERRA doesn’t require plaintiffs to exhaust any administrative remedies first, like going through the Equal Employment Opportunity Commission.

USERRA claims tend to be more successful as private lawsuits and move faster than if plaintiffs go through the federal government, Wright said. The DOJ lawsuit in the Walmart case comes three-and-a-half years after the store’s alleged violation, he noted.

Wright said that USERRA protections are vital to U.S.’s ability to recruit for and maintain its uniformed services, even if accommodating those workers’ military obligations can seem an inconvenience for employers.

“It’s a small thing to ask employers and coworkers to make for the benefit of those who protect us all.”

— Doug Chartier

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