Protections Against Employment Discrimination for Military Personnel and Veterans

Even in our great nation, military service is not always as lauded as it should be and Servicemembers and Veterans are not always as sought after as employees as they should be.  Fortunately, the United States Congress realized that we do not all act as we should towards these heroes and Congress enacted the Uniformed Services Employment and Reemployment Rights Act (USERRA).  This brief article will focus on the anti-discrimination provisions of USERRA.

stockfresh_936092_military-uniform-soldier-row_sizeS-300x200It is important to realize that USERRA is a floor and not a ceiling.  In other words, it does not supersede any laws, regulations, or agreements that increase protections based on service in the uniformed services but it supersedes all those which reduce, limit or eliminate a right or benefit.[1] 

Is There A Statute of Limitations?

It is important to realize that there is no Statute of Limitations for USERRA claims.[2]  This means that even if other laws or regulations state that you only have three years to file a claim or complaint, you can file a claim or complaint under USERRA later.  The ability for an employee to disregard state and federal Statutes of Limitations in claims brought under USERRA arose as recently as October 10, 2008, and only applies to claims not already expired as of that date.[3]  38 U.S.C. §4301 lists three main purposes of USERRA, the third being “to prohibit discrimination against persons because of their service in the uniformed services.”[4]  USERRA does this by prohibiting an employer from denying “initial employment, reemployment, retention in employment, promotion, or any benefit of employment” to anyone based upon membership in the military, application for membership in the military, performance of military service, application for military service, or obligation to perform some form of military service.[5]  These benefits include:

…the terms, conditions, or privileges of employment, including any advantage, profit, privilege, gain, status, account, or interest (including wages or salary for work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice and includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or location of employment.[6]

The term Uniformed Services means:

…the Armed Forces, the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty, the commissioned corps of the Public Health Service, System members of the National Urban Search and Rescue Response System during a period of appointment into Federal service under section 327 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, and any other category of persons designated by the President in time of war or national emergency.[7]

The employee has to show similar elements of other discrimination claims to successfully bring a cause under USERRA, such as (1) that he or she is a member of a protected class and (2) that this membership is at least a motivating factor in an adverse employment action against the employee.  Unlike other discrimination claims, the burden under USERRA quickly shifts to the employer to “prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service[.]”[8]  USERRA also has a retaliation component that protects any employee, regardless if he or she is a member of the protected class, from an adverse employment action.[9]  This means that even if an employee is not and has never been a member of the uniformed services, he or she can still bring a claim under USERRA if that employee is subject to an adverse employment action which was at least motivated by that same employee’s connection to a different action or investigation brought under USERRA.[10]

What About Denied Promotions?

For example of claims under USERRA, let us say that VETERAN was denied a promotion because BOSS hated the military and wanted VETERAN to suffer due to her service in the military.  VETERAN files a claim under USERRA and EMPLOYEE submits a sworn statement that BOSS told him that BOSS was going to make sure VETERAN did not get her due promotion because BOSS hated the military and all Veterans.  Because of this sworn statement, BOSS turns around and subjects EMPLOYEE to an adverse employment action.  In this example, both VETERAN and EMPLOYEE might have claims against BOSS under USERRA, even if EMPLOYEE was not a member of the protected class under USERRA.

Although service in the uniform services should be praised and given the highest honors, sometimes we need to rely upon protective laws such as USERRA to ensure that all Americans stay true to our noble ideals.

Author: Tod Leaven is a service-connected Veteran of the United States Army and a partner at the law firm of Grimes Teich Anderson, LLP, in charge of the firm’s Veterans Law section.  His firm has offices in North and South Carolina, and his Veterans practice is national.

[1] 38 U.S.C. § 4302.

[2] 38 U.S.C. § 4327(b).

[3] See Baldwin v. City of Greensboro, 714 F.3d 828 (4th Cir., 2013); Cabrera v. Prospective Software, 147 F.Supp.3d 1247 (D. Kansas, 2015).

[4] 38 U.S.C. § 4301(a)(3).

[5] 38 U.S.C. § 4311(a).

[6] 38 U.S.C. § 4303(2)

[7] 38 U.S.C. § 4303(16)

[8] 38 U.S.C. § 4311(c)(1).

[9] 38 U.S.C. § 4311(b).

[10] 38 U.S.C. § 4311(c)(2).

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