Yesterday I presented a CLE on USERRA cosponsored by the Military & Veterans Affairs section of the Minnesota State Bar Association and the Minnesota Committee of the DoD Employer Support of Guard and Reserve (ESGR) program. I apologize to the attendees for the fast pace of the presentation, but the topic is a bit too broad for a one-hour presentation. However, by the questions and comments after the presentation, I have the sense most gained a broader understanding of the reemployment rights of servicemembers. A few topics that seemed of special interest to the attendees:
- Disability Issues: This topic was simply too broad to cover in detail during the CLE. But some points to take away from the presentation: USERRA is much broader than the ADA, and it applies to virtually ALL employers. Also, USERRA requires an employer place the servicemember in the escalator, or other position, even if it results in termination of the employee occupying that position – the ADA does not require this. And finally, USERRA may prohibit termination when the employee’s conduct is attributable to a disability, such as PTSD/PTSI, even after his/her reemployment.
- Waiver Issues: A servicemember cannot effectively waive USERRA reemployment rights. Thus, a “resignation” will not prevent the servicemember from demanding reemployment following the uniformed service. However, if the resignation is in writing, it may effectively waive benefits during the uniformed service that may otherwise be required under USERRA, e.g., health benefits, differential pay, etc.
- Hostile Work Environment: In November, 2011 Congress amended USERRA to expand its protections to include claims for “hostile work environment” by including the phrase “the terms, conditions or privileges of employment” in its definition of employment benefits. In 2013, the Supreme Court had occasion to clarify the “hostile work environment” claim in the context of a claim under Title VII (Civil Rights Act of 1964). Vance v. Ball State University, 133 S. Ct. 2434 (2013). An employer may be liable for hostile work environment harassment by employees who are not supervisors if the employer was “negligent in failing to prevent harassment from taking place.” Important factors used to determine whether the employer was negligent include “the nature and degree of authority wielded by the harasser,” “[e]vidence that an employer did not monitor the workplace, failed to respond to complaints, failed to provide a system for registering complaints, or effectively discouraged complaints from being filed.”What does this mean for servicemembers and their civilian employers? The obvious answer is that harassment by an “employer” that forces the servicemember to resign may subject it to liability, just as if the employer terminated her/him, especially if the harassment was perpetrated by a supervisor or the employer did not monitor the workplace appropriately. (To my fellow attorneys, apologies for the rather simplistic treatment of a complex area of the law.)More complicated issues include the following:
- Section 4311(a) Discrimination: Even if a servicemember resigns, if it was the result of workplace harassment by supervisors or coworkers based upon his/her uniformed service, the employer may be held liable. Since there is no statute of limitations for USERRA claims, the employer may be exposed to claims long after the servicemember left employment. As any litigator will advise an employer, if there is a fact issue that will preclude a favorable summary judgment motion on behalf of the employer, the cost to the employer of not settling a claim increases significantly. It fundamentally changes the decision-making process for the company as to whether it settles the claim.
- “Employer” Under USERRA: Perhaps the most significant result from the “hostile work environment” amendment arises from the expanded definition of “employer” under USERRA. “Employer” is defined broadly to include any individual or entity “that has control over [the servicemember’s] employment opportunities.” Thus, servicemembers working as contractors, contract security guards, employees placed by temp agencies, and any other position in which they are supervised by someone other than their direct employer, may have claims against the entity that created the hostile work environment, even if it is not the direct employer.
The presentation I used during the CLE is here (USERRA CLE Nov 7, 2013). Keep in mind that USERRA is constantly evolving through amendments, regulations, and court interpretations. If you have any questions regarding USERRA and how it applies to your business practices or employment situation, please contact ESGR at www.ESGR.mil, or consult your attorney.
Mathew M. Meyer, Esq., Cornell Law ’95, is a business law, regulation, and commercial litigation attorney in the Twin Cities area. A Marine Veteran, Mr. Meyer is a long-time volunteer and mediator with the Department of Defense ESGR program. He is the Minnesota ESGR Assistant Ombudsman Director and Military Liaison to local Marine and Navy Reserve units, and frequently advises servicemembers and employers regarding USERRA legal issues. All opinions, comments, and analysis are his alone, and do not reflect those of the Department of Defense ESGR program, or any other organization.