Total Articles: 32
USERRA Expanded to Include Hostile Work Environment Claims
Executive Summary: On November 21, 2011, President Obama signed into law the VOW to Hire Heroes Act of 2011. The new law contains three main provisions: (1) amends and expands the protections under the Uniformed Services Employment and Reemployment Rights Act (USERRA); (2) amends the Internal Revenue Code to provide certain tax credits to tax-exempt companies that hire unemployed veterans; and (3) creates new and expanded education, training, and transition programs for veterans within the federal Departments of Labor and Veterans Affairs. The first provisions of the new law (amendment to USERRA) may make it easier for employees (including former, part-time and probationary employees) to sue their employers for discrimination related to their military status.
Employer Obligations to Veterans and Military Members Continue to Expand
The federal “Veterans Opportunity to Work (VOW) to Hire Heroes Act of 2011” became law on November 21, 2011. The new law amended and expanded employment protections for employees under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). In addition, several other federal and Minnesota statutes provide employment protections to employees related to their own military service and the service of their family members. As employees and their family members continue to be called for and return from military service, employers need to ensure compliance with these multiple laws.
New Law Expands USERRA to Recognize Hostile Environment Claims
A new law passed with bipartisan support and signed by President Obama may make it easier for individuals to sue their employers for discrimination on account of their military status.
JOB PROTECTIONS AND LEAVES OF ABSENCE FOR SERVICEMEMBERS AND THEIR FAMILIES
With military engagements in Afghanistan and Iraq, employers now more than ever must deal with employees’ commitments to the military. Under both federal and California law, servicemember employees – and their families – have broad protections and leave entitlements.
Federal Appellate Court Rejects Hostile Environment Theory under USERRA
An employer may not be subject to liability for a hostile work environment under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), the Fifth Circuit Court of Appeals has held. Carder v. Continental Airlines, No. 10-20105 (5th Cir. Mar. 22, 2011). In a case alleging discrimination because of military status under USERRA, the Court ruled the statutory language of USERRA did not cover claims for harassment that neither rose to the level of a constructive discharge nor denied a “benefit of employment.” This is the first appellate decision to address this issue, although some lower court decisions have recognized such claims. The Fifth Circuit has jurisdiction over Louisiana, Mississippi and Texas.
The USERRA does not provide a claim for hostile work environment.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted to prohibit civilian employers from discriminating against employees engaged in military service, and states that employees who perform military service “shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment” on the basis of that service. In a case of first impression, the 5th U.S. Circuit Court of Appeals has held that the language of the statute does not create a cause of action for “hostile work environment” against military service members.
USERRA Coverage May Be Triggered Prior to Formal Military Orders
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) was enacted to encourage non-career military service and to prevent discrimination against military service members. An employer may not discriminate against any person because such person has taken an action to enforce a protection afforded under USERRA. Generally, protection begins when an employee is called to active duty or military training, and provides orders for such duty or training. However, the 1st U.S. Circuit Court of Appeals recently held that an employees announcement to his employer that he intended to return to active duty after remaining inactive for multiple years was sufficient to trigger protection under the USERRA.
USERRA coverage may be triggered prior to formal military orders.
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) was enacted to encourage non-career military service and to prevent discrimination against military service members. An employer may not discriminate against any person because such person has taken an action to enforce a protection afforded under USERRA. Generally, protection begins when an employee is called to active duty or military training, and provides orders for such duty or training. However, the 1st U.S. Circuit Court of Appeals recently held that an employees announcement to his employer that he intended to return to active duty after remaining inactive for multiple years was sufficient to trigger protection under the USERRA.
Policies And Procedures Pay Off For Car Manufacturer In USERRA Case.
Earlier this year, a federal appeals court ruled in favor of Hyundai Motor Manufacturing Alabama, LLC (HMMA) in a case brought under the Uniformed Services Employment and Re-Employment Rights Act of 1994 (USERRA). In his complaint, ex-employee Jerry Leon Dees alleged that he was discriminated against and harassed based on his National Guard membership, and that he was ultimately fired because of his National Guard obligations. One of the key issues was whether Dees had standing to bring a USERRA harassment claim since he did not suffer lost wages or loss of other employee benefits.
To support a claim under the USERRA, an employee must prove only that military status was one factor supporting an adverse employment action.
Congress enacted the Uniformed Services Employment and Reemployment Rights Act (USERRA) to encourage non-career service in the uniformed services, by minimizing the disadvantages to civilian employment which can result from such service.
Ask the Editor: USERRA Q&A (pdf).
During the past year, newsletter
editor Aaron Gelb participated
in a 3-week jury trial involving a
number of claims under the
Uniformed Services
Employment and
Reemployment Rights Act
(USERRA).
Rescinding Employment Benefit Extended Only to Employees With Military Obligations Does Not Violate the USERRA.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects members of the armed services against employment discrimination related to the benefits of their employment. The 7th U.S. Circuit Court of Appeals has held that such protection refers to employment benefits that are extended generally to military and non-military employees alike, and that discontinuing a benefit that had been extended only to employees with military obligations does not violate the USERRA.
Court "Drops The Anchor" On Naval Reservist's USERRA Suit.
A federal appellate court has dismissed a lawsuit brought by an employee who claimed that he was demoted because of his military service in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). According to the court, a reasonable jury could find that the worker's new job was a lateral transfer that did not amount to an "adverse employment action."
Think Twice Before Delaying Reservist Reemployment.
As the war in Iraq drags on, employers continue to struggle with the legal challenges surrounding their reemployment obligations. The Uniformed Services Employment and Reemployment Rights Act (USERRA) sets a high bar when it comes to compliance, as illustrated by the fact that it remains the only federal workplace statute providing a built-in presumption in the plaintiff's favor. A police department in Nashville, Tennessee recently learned just how daunting the compliance challenge can be.
The USERRA Supersedes Employers Fitness For Duty Procedures.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted to protect the rights of veterans and members of the uniformed services, and is broadly construed in favor of those individuals. The Act specifically states that a returning veteran must be promptly reemployed after an honorable discharge from military service and requires that, in most cases, reinstatement is made to the position which the individual would have held had he or she not left for military leave. The 6th U.S. Circuit Court of Appeals has held that a police departments delay in re-employing a returning Army reservist violated the USERRA, even though the delay was based upon the employees suspected dishonesty.
The USERRA Does Not Pre-empt An Employment Contract's Arbitration Clause.
Federal law favors arbitration of disputes. While the U.S. Supreme Court has held that statutory claims - including employment-related issues generally are subject to arbitration, it has not specifically addressed the arbitrability of claims under the Uniformed Services Employment and Re-employment Act (USERRA). Until recently, in fact, only one federal appellate court had addressed that issue, and had determined that claims related to the USERRA are subject to arbitration, if arbitration is required under a written agreement. Garrett v. Circuit City Stores, Inc., 449 F.3d 672 (5th Cir. 2006). Recently, the 6th U.S. Circuit Court of Appeals reached the same conclusion, finding that an optometrist who was called to military duty was required to arbitrate his claims related to demotion and earnings.
Q&A: Spotlight on USERRA.
The Uniformed Services
Employment and
Reemployment Rights Act
provides job restoration and
other rights to service members.
USERRA applies to employers
with as few as one employee.
Here are some questions we
have received:
Release Contained in Severance Agreement May Not Bar USERRA Claims.
The California Court of Appeal recently held that a release of rights in a severance agreement does not bar claims arising from the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).
A Primer On USERRA.
As the Iraq war continues, new service orders are being issued, existing commitments are being extended, and veterans are returning to work. These actions can cause problems in the workplace for employers. All employers have obligations to military service personnel, but we've found that few employers fully understand those obligations. This article outlines the law governing service members' employment-related rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA).
Target Stung By Seven Figure Verdict In USERRA Case.
Proving once again that employers can pay a steep price for disregarding the rights of returning Veterans, a jury recently awarded just under $1,000,000 to an Oregon National Guardsman who was discharged after seeking outside assistance to get his job back. Apparently in a sense of outrage, a jury in the U.S. District Court for the District of Oregon awarded an employee $85,000 in economic and compensatory damages and a whopping $900,000 in punitive damages, based largely upon the timing of the employer's discharge decision. Patton v. Target Corp.
Hostile Work Environment Claims Held Cognizable Under USERRA.
A federal district court judge in Kentucky recently held that a former Marine could sue his employer for both discrimination and harassment under the federal Uniformed Services Employment and Reemployment Rights Act (USERRA). Because the right to be free from a hostile work environment is a "benefit of employment," the court held, the employee may proceed with his claim under USERRA.
Military Personnel Have Job Protection Rights When Called To Duty.
With the still unresolved political question of whether to escalate or withdraw from the Iraq war, Americas service men and women continue to be called away from their civil jobs to assist with the war effort. At least one source reports that, since September 11, 2001, approximately 550,000 reservists and members of the National Guard have been called to active duty. Of those, 475,000 have returned to the civilian work force.
Court rejects employee's USERRA claim (pdf).
Finds discharge stemmed from employee's misconduct.
New Military Leave Regulations Clarify National Guard And Reserve Obligations (pdf).
In response to the mobilization of over 500,000 National Guard and Reserve members to support
the military operations in Iraq and Afghanistan, the U.S. Department of Labor (DOL) recently issued
a comprehensive set of regulations explaining and clarifying the Uniformed Services Employment
and Reemployment Act (USERRA).
Updated Information About Military Leaves.
The federal Department of Labors Veterans Employment and Training Service (VETS) recently published final regulations implementing the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA is the 1994 federal law that establishes rights and benefits for employees called to military service.
U.S. Department of Labor Also Issues Military Leave Regulations (pdf).
As discussed in our Labor Law Bulletin dated
December 22, 2005, the U.S. Department of Labor has
also issued final regulations under The Uniformed Services
Employment and Reemployment Rights Act of 1994
(USERRA). The regulations define/clarify key
provisions of USERRA and provide detailed guidance on
benefit entitlements and reemployment rights. Employers
are strongly encouraged to review and update, as
necessary, their military leave policies to ensure that
they are consistent with these regulations as well as
applicable state laws. The full text of the final regulations
can be found at http://www.nacua.org/
documentsUSERRA_FinalRules.pdf
DOL Issues First-Ever Regulations On Military Leave Under USERRA (pdf).
Today, the U.S. Department of Labor's Veterans Employment and Training Service
("VETS") issued the long-awaited new rules to implement the Uniformed Services
Employment and Reemployment Rights Act of 1994, as amended (USERRA), which were
originally proposed for public comment on September 30, 2004.
Military Leave Regulations Issued (pdf).
On December 19, 2005, the Department of Labor (DOL) issued final regulations under the Uniformed Services Employment and Reemployment Rights Act of 1994, as amended (USERRA). These are the first comprehensive regulations ever issued describing the employment and reemployment rights of military service members under federal law. The full text of the final regulations can be found at: http://www.nacua.org/documents/USERRA_FinalRules.pdf.
Proposed Regs Draw Little Public Attention (pdf).
The Uniform Services Employment and Re-Employment
Rights Act of 1994 (USERRA) provides significant
rights and benefits to employees who leave their jobs
voluntarily or involuntarily to perform duty in a uniformed
service.
Complying with Federal and State Laws Protecting Employment Rights of Military Personnel [PDF File, p.1].
Given recent hostilities, employers are being reminded by the Department of Labor that their workers who leave their civilian jobs for military service are protected by federal lawthe Uniformed Services
Employment and Reemployment Rights Act (USERRA), which is enforced by the Department of Labors Veterans Employment and Training Service (VETS).
What an Employer Should Know About Military Leaves.
Many employers recently have experienced the military call-up of one or more of their employees. Still more employees may be called for military duty. Employers have and will continue to face questions regarding employees called to duty. The fundamental obligations of an employer when an employee is called to duty are outlined below.
National Guard Duty Absences May Have Been A Motivating Factor In Firing Employee, Precluding Summary Judgment.
Discusses Leisek v. Brightwood Corp. 16 D.L.R. AA-1 (9th Cir. January 22, 2002), in which the court held that an employee's absences from work to fulfill National Guard Duty orders may have been a "motivating factor" in the employee's termination.
