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Total Articles: 22

Virginia Supreme Court Rules Sovereign Immunity Bars Private USERRA Claims Against State Employers in State Court

The Supreme Court of Virginia, in Clark v. Virginia Department of State Police, No. 151857 (Dec. 1. 2016), recently ruled that the doctrine of sovereign immunity barred a private plaintiff’s claim under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) against the Virginia Department of State Police (“VSP”), an arm of the Commonwealth. The Clark decision has made clear that service members working for the Commonwealth of Virginia as the employer cannot bring a lawsuit alleging a violation of USERRA. This decision, however, does not impact the ability of the federal government to bring suit against a state for USERRA violations on behalf of an individual or a private plaintiff’s ability to sue a private employer under USERRA.

USERRA No Bar to Enforcing Employment Arbitration Agreement, Federal Appeals Court Rules

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) does not prohibit compelling a former employee to arbitrate his USERRA claims under an arbitration agreement, the U.S. Court of Appeals for the Ninth Circuit, in San Francisco, has ruled. Ziober v. BLB Resources, Inc., No. 14-56374 (9th Cir. Oct. 14, 2016).

Veterans Rights: What Employers Need to Know

Does your Company have at least one employee? If the answer is YES, then the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) applies to you. USERRA prohibits employment discrimination against a person on the basis of past military service, current military obligations, or intent to serve.

Job Applicant Was Rejected Due to Dishonesty, Not Prior Lawsuit, Says Sixth Circuit

On April 8, 2016, the Sixth Circuit Court of Appeals affirmed a judgment in favor of an employer in Hance v. BNSF Railway Company, a failure-to-hire retaliation case brought under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).

Surgeon Not Entitled to USERRA Reinstatement When Employed for Brief Period, Court Finds

An employer did not violate the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) when it discharged an employee shortly after his return from active duty, the Sixth Circuit Court of Appeals, in Cincinnati, has held. Slusher v. Shelbyville Hosp. Corp., No. 15-5256 (6th Cir. Oct. 26, 2015).

USERRA: 'Escalating' Employer Risk for Discretionary Promotions

As the United States' various engagements in the Middle East wind down, military servicemembers are returning home in growing numbers. According to the Equal Employment Opportunity Commission, three million veterans have returned from military service over the past ten years, and another million are expected to return to civilian life over the next five years. Many of these returning servicemembers will be joining, or rejoining, the civilian workforce.

Employment Law Made Un-Scary: USERRA

Everything you ever wanted to know about the Uniformed Services Employment and Reemployment Rights Act in one handy post.

Recent Guidelines for Employers of Active Duty & Veteran Service Members

With the recent drawdown of troops serving in Iraq and Afghanistan, many veterans will be leaving active military duty and returning to the U.S. workforce. The Equal Employment Opportunity Commission (EEOC) has issued timely and relevant guidance for employers on this topic, specifically addressing protections afforded veterans under the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Americans With Disabilities Act (ADA). (See www1.eeoc.gov//eeoc/publications/ada_veterans_employers.cfm). In addition, the guidance briefly addresses special veteran-related requirements applicable to federal contractors.

Issue: Wounded Warriors Want To Return To Work – and Employers Can Help That Transition

On February 28, 2012, the Equal Employment Opportunity Commission (EEOC) released two publications addressing the rights of military veterans with disabilities under the Americans with Disabilities Act (ADA), as part of its efforts to aid such veterans in the transition back into civilian employment. According to government statistics, three million veterans have returned from military service over the past 10 years, and another 1 million veterans are expected to return to civilian life over the next five years. The EEOC’s revised “guide for employers” explains how legal protections for veterans with disabilities compare between the ADA and the Uniformed Services Employment and Reemployment Rights Act (the USERRA) and how employers can prevent disability discrimination and provide reasonable accommodation for returning veterans. The guide includes information on organizations that can help employers to find qualified veterans for jobs, and aid in developing accommodations for veterans’ medical and psychological impairments.

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 employee’s 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 employee’s 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.

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 Employer’s “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 department’s delay in re-employing a returning Army reservist violated the USERRA, even though the delay was based upon the employee’s 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.

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.
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