Since Sept. 11, 2001, over 500,000 citizen solders have been mobilized to fight the war on terrorism. The United States military involvement in Iraq continues. Many American soldiers have served more than one tour of duty in the Middle East, and may be required to serve more. Additionally, the need for American troops in other parts of the world and at home continues, whether for conflict management or aid due to natural disaster. As a result, employers must maintain their ability to navigate military leave requirements, including employer’s rights and responsibilities in administering that leave. Many veterans may also experience medical conditions arising from their prior service and employers must be prepared to address those issues.
In hopes of clarifying the requirements under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and the Veterans’ Benefits Improvement Act (VBIA), the Department of Labor issued final regulations interpreting these laws; the final regulations were effective Jan. 6, 2007. These regulations, in conjunction with recent case law, have clarified and reaffirmed some elements of the USERRA law.
USERRA AND VBIA REFRESHER
USERRA prohibits an employer of any size from discriminating against a person because of their service in the uniformed services. An employer is also prohibited from denying any benefit of employment based on an individual’s membership in, obligations to, or application to enlist in the uniformed services. USERRA also protects a veteran’s right to reclaim their civilian employment after being absent for military service. VBIA requires employer-sponsored health plans to provide COBRA-type insurance coverage for up to 24 months for employees who are absent due to military obligations. Additionally, employers must a post a USERRA informational poster in the same area where other notices for employees are usually placed. VBIA also instituted a pilot alternative program for the receipt and investigation of USERRA complaints by federal employees.
THE EMPLOYER SHOULDERS THE BURDEN
Unlike Title VII cases, the employee plaintiff in a USERRA discrimination case never has to show that the employer’s reason for termination is a pretext; the burden of proof remains on the employer to show that the action would have been taken, with or without the military service. In Velazquez-Garcia v. Horizon, 473 F.3d 11 (1st. Cir. 2007), an employee claimed that he was terminated as the result of his reserve duty obligations. The company claimed that the employee was fired because he was operating a check cashing business for other employees in violation of the company code of conduct. In overturning a summary judgment for the employer, the First Circuit held that the employee must only show that his military service was a “contributing factor” in the employment decision. 473 F.3d. at 18. The burden then shifts to the employer to show that the action would have been taken regardless of the employee’s military service. Id. In Horizon, the employee had presented sufficient evidence of employer animus concerning his military service to warrant overturning the summary judgment and sending the case to a jury. The First Circuit’s holding follows that of similar cases around the country.
RealSolutions®: Fair and consistent treatment of policy violations, as always, is important. Even more so, employers must train supervisors on the significance of the appropriate handling of employee service obligations. For example, even stray remarks concerning the inconvenience of scheduling around an employee’s two week reserve duty could constitute evidence that the service obligations were a motivating factor in a subsequent employment decision such as demotion or termination.
WHAT CONSTITUTES USERRA LEAVE
In Moore v. Epperson Underwriting Company, 2007 WL2332755 (D.Minn 2007), the court addressed a terminated employee’s claims of discrimination and retaliation in violation of USERRA. In this case, Moore served in the Marines for nine years, including active duty service in Iraq from September 2004 through March 2005. Returning home to seek civilian employment, he was hired by Epperson Underwriting Company (Epperson) as a loss prevention specialist in July 2005.
After his discharge from active duty, Moore was diagnosed with Crohn’s disease, a gastrointestinal tract disorder, and primary sclerosing cholangitis, an illness involving constriction and scarring of the biliary ducts which eventually leads to liver failure. In January 2006, the Department of Veterans Affairs determined that these conditions were service-related and granted Moore compensation benefits.
Within a few months of his hiring, Moore needed time off for surgical procedures related to his illnesses and subsequently missed work, including important training time. On November 8th, Moore raised concerns that his time off for the procedures and necessary recovery time was USERRA protected leave and that he should not have been required to use his available paid leave; his supervisor provided Human Resources with the information and an investigation was initiated. In addition to the USERRA complaint, there were numerous alleged negative comments by his supervisor concerning his health status, alleged reimbursement policy violations by Moore, and an alleged “bad attitude”. Epperson terminated Moore’s employment on Dec. 6, 2006.
Moore alleged that Epperson discriminated against him in violation of USERRA and the Minnesota disability discrimination statute when it terminated him because of medical absences and required him to use his accrued vacation time for the medical absences. The court granted summary judgment to the employer on the USERRA claim, holding that the medical appointments did not constitute a military duty under USERRA and were not necessary to determine his fitness for duty; the illnesses were service related, but the appointments and procedures were for treatment only. Significantly, the court did not dismiss Moore’s state law disability discrimination claim, as there was sufficient evidence that Moore was terminated as a result of his disability to justify sending the issue to a jury.
Moore also alleged that his termination was in retaliation for his USERRA complaint and in retaliation for engaging in protected conduct (requesting medical leave) under the state disability statute. With respect to the USERRA claim, the court refused to grant summary judgment to the employer and recognized that evidence from both parties presented an issue of fact for the jury as to whether the USERRA claim was a motivating factor in the company’s decision to terminate Moore. The close proximity in time between Moore’s allegation that his leave was protected under USERRA and the termination date was significant. For similar reasons, the court refused to dismiss the state law retaliation claim.
RealSolutions®: An absence from work for medical treatment for service related injuries is likely not covered by USERRA. However, medical leaves necessitated by the underlying conditions could be covered by the Americans with Disabilities Act, state and local disability laws, and/or the Family and Medical Leave Act. Remember to evaluate all leaves under all of the different applicable statutes. Further, there was not a formal USERRA complaint in this case - the employee simply put the employer on notice that he thought his leave was protected by USERRA. That was enough to trigger the retaliation provisions of the statute. Similar to other anti–discrimination statutes, the question of whether the activity was actually protected by the statute was irrelevant. This affirms the practice of good documentation for all employee performance reviews and performance issues to ensure that an accurate picture of the employee’s history can be proven if a retaliation claim is raised.
RETURN TO WORK FROM ACTIVE DUTY
In Hodges v. Prestage Farms, Inc., 2007 WL 1153120 (N.D. Miss), a USERRA failure to re-employ case, the court reviewed the employee’s notice obligations concerning necessary leave for activation and the notice of intent to return to work at the time of discharge from active duty. The employer claimed that the employee did not give proper notice at the time of activation and therefore it was assumed that the employee quit. The court noted that a “departing service member is only under a requirement to provide appropriate written or oral notification to the employee of the activation.” It was undisputed that the employee gave oral notice of his activation. The employee did not, however, comply with the requirement to reapply for employment in a timely manner. The statute clearly states that an employee must reapply for employment within 90 days of his discharge from active duty. In this case the employee could have reapplied within 93 days of his discharge due to the employer’s policy of termination after a 3 day absence without notice or excuse. The employee did not reapply until nearly two months after expiration of the 93 day period, and so failed to timely reapply for employment.
RealSolutions®: The returning employee must satisfy the requirement to timely reapply for employment. If the employee serves less than 31 days, he must be ready to return to work within the work period following travel and 8 hours rest. If he serves between 31 and 180 days, he must reapply within 14 days of release. If service lasts more than 180 days, the 90 day requirement applies. Also, with respect to notice at the time of activation, “the employee's notice to the employer may be either verbal or written. The notice may be informal and does not need to follow any particular format.” 20 C.F.R. 1002.85(c). Significantly, the employee is not required to tell the employer whether he will be seeking reemployment at the conclusion of active duty; even if the employee states that he will not be seeking reemployment, the right to reemployment is not waived if he changes his mind. 20 C.F.R. 1002.88. Employers, including all supervisors, should be prepared to receive notices of reemployment requests from returning soldiers. All communications from employees on military leave, whether oral or written, should be promptly communicated to the human resources so that appropriate action can be taken.
ARE USERRA CLAIMS COVERED BY ARBITRATION AGREEMENTS?
Within the last year, several courts have addressed the issue of whether USERRA claims are subject to arbitration agreements or whether Congress intended to preclude arbitration in the context of USERRA. The majority have determined that USERRA claims are subject to arbitration agreements. See, e.g., Garrett v. Circuit City Stores, Inc., 449 F.3d 672 (5th Cir. 2006); Kitts v. Menards, Inc., No. 3:06-CV-708, 2007 WL 2901142 (N.D. Ind. September 28, 2007); Landis v. Pinnacle Eye Care, LLC, No. 3:06-CV-569 , 2007 WL 2668519 (W.D.Ken. September 6, 2007); Kline v. City of Lansing, No 5:06-CV-142, 2007 WL 1521187 (W.D. Mich. May 21, 2007).
RealSolutions®: If a USERRA claim is filed and arbitration agreements are in place, explore the possibility with the company attorney of defending the claim in an arbitration proceeding.
With no end in sight, the employment needs of America’s veterans and reserve soldiers will remain with employers for some time. Be prepared to work with these returning soldiers in an informed manner, and hopefully avoid a USERRA battle.