USERRA Honors Servicemembers

Protections extend to those who leave private employment to serve their country.

March 11, 2012

Do you have employees who must leave work for two or three weeks each year as part of their training as members of the U.S. Army Reserve?

Do you have employees—or even job applicants—who are current or former servicemembers?

As troops returning from Iraq and Afghanistan seek employment or re-employment, credit unions must be careful to comply with the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).

USERRA protects the job rights of those who voluntarily or involuntarily leave employment to serve in the military. It prohibits employers from discriminating against past and present members of, or applicants to, the uniformed services.

Under USERRA, individuals have the right to be re-employed if they:

  • Left jobs to perform military service and the credit union received advanced written or verbal notice of this service;
  • Have five years or less of cumulative service as servicemembers while employed at a credit union;
  • Return to work or apply for re-employment in a timely manner after the conclusion of military service; and
  • Weren’t separated from service with a disqualifying discharge.

If these requirements are met, the employee must be restored to the job and benefits (or, in some cases, a comparable job) that would have been attained if he or she hadn’t been absent due to military service.

Also, past or present servicemembers, or those who have applied for this duty, may not be denied initial employment, re-employment, retention in employment, promotion, or any benefit of employment based on that status.

Credit unions may not retaliate against those assisting in the enforcement of USERRA rights, including someone who testifies or makes a statement in connection with a proceeding under USERRA, even if that person has no military service connection.

USERRA temporarily changes the at-will employment status of returning veterans based on their length of military service. For instance, an employee who serves more than 30 days but less than 181 days cannot be discharged from employment except for cause within the first 180 days of re-employment (see “To v. US Bancorp,” 651 F.3d 888 [8th Cir. 2011]).

The U.S. Labor Department’s Veterans Employment and Training Service (VETS) investigates and resolves alleged USERRA violations. However, individuals may bypass the VETS process and bring civil action directly against employers for USERRA violations. Such cases have proliferated in the federal courts.

In 2011, the U.S. Supreme Court held that an employer may be liable under USERRA for employment discrimination based on the antimilitary animus of a supervisor who influences, but does not make, the ultimate employment decision (“Staub v. Proctor Hospital,” 131 S. Ct. 1186 [2011]).

Vincent Staub, a military reservist, was fired because of his alleged noncompliance with a disciplinary warning issued by a supervisor who was hostile to Staub’s military obligations. Staub sued, contending not that his employer had discriminatory motives but that his supervisors did, and that the supervisors’ actions influenced the employer’s decision to fire him.

The court explained that if a supervisor performs an act motivated by antimilitary animus that is intended to cause an adverse employment action, and that act is a cause for the ultimate employment action, the employer is liable.

The lesson: Educate all employees about federal protections based on servicemember status.

Failure to comply with USERRA can be costly. An employee may be entitled to compensation for any resulting loss of wages or benefits, as well as attorney fees. And if the employer’s noncompliance is willful, the prevailing party may receive double the back pay award.

USERRA was enacted to protect the rights of veterans and servicemembers. Therefore, courts liberally construe the statute in favor of military claimants.

As such, credit unions should take extra care to draft and enforce policies that comply with USERRA. Not only does compliance honor the sacrifices made by individuals who serve their country, it makes good business sense.

TRISH WALSH is an associate at Farleigh Wada Witt, Portland, Ore.