Employers beginning to see more USERRA claims

By G. Phillip Shuler

Earlier this year, in the May 2003 issue, we revisited some of the many rights and obligations of employees and employers under the Uniformed Services Employment and Re-employment Rights Act (USERRA) and predicted that employers would soon have to deal with that law much more frequently.

As a quick refresher, USERRA is a federal law that requires employers to grant leave to employees who serve in the National Guard or the military reserve, when they are called to active duty, and then to reinstate those employees to their former position upon their return - without loss of seniority, rate of pay or other benefits.

Now that more and more national guardsmen and military-reservist employees who were recently called to active duty are returning home, there are signs that the earlier predictions are coming true and that employers who failed to comply with USERRA are already facing litigation.

Because earlier articles have already outlined the nuts and bolts of USERRA's legal requirements, we instead offer you more insight into the scope of the current problem and a few examples of recent claims against employers. This will, I hope, help you identify scenarios with the potential to develop into claims under USERRA and allow you to stop them before they start.

While some USRERRA claims have arisen from employer conduct prior to the affected employee's leave, as you will see through the examples below, the problem has more often come about when veterans return home from military duty abroad and receive a less than warm reception upon their return to work.

In fact, when the 2003 United States Department of Labor fiscal year ended on Sept. 30 approximately 1,300 national guardsmen and reservists had filed complaints, claiming that they had suffered discrimination upon returning to their regular jobs after completing their military tours abroad.

This is almost forty-five percent (45 percent) more claims than were filed in 2001, prior to most of the military activity in the wake of the Sept. 11 attacks and the later military operations in Afghanistan and Iraq.

This, and concerns over employers possibly avoiding their obligations under USERRA, recently prompted United States Labor Secretary, Elaine Chao, to appear in nationwide public service announcements reminding employers that they must reinstate workers called to military service. Some may not realize that the United States has become increasingly dependant upon reservists and members of the National Guard, who now collectively comprise approximately fifty percent (50 percent) of our military personnel in Iraq.

More specifically, since Sept. 11, 2001, approximately 306,000 reservists and guardsmen have been called to duty, including about 163,000 who are presently on active duty. And the government has proven to be quite serious about protecting these men and women upon their return to work.

For those employees who have received something less than the proper reception, the Department of Labor has been taking action to enforce employers' obligations under USERRA.

The most common complaint in the past year has been from reserve and guard personnel who claim that they missed out on certain jobs and promotions because of their mobilization (approximately 1/3 of the cases), with another nearly 20 percent claiming that they were not reinstated to the jobs that they had left to accept their military obligations.

The remaining cases involved vacation, seniority and pension issues, according to Department of Labor statistics, as recently reported by the Washington Post.

To remedy these employer shortcomings, the department has so far referred approximately 80 cases to the Department of Justice for possible civil prosecution, nationwide. For example, the United States Attorney in Denver, Colorado has already filed two lawsuits on behalf of national guard and other reserve forces during the past six months.

What do the facts of these cases look like, and how can you spot them before they start?

In one such case, which settled before trial, the government alleged that a driver for a Dallas-based trucking company preliminarily notified his supervisor by telephone that he had been called-up to active duty and that he was going to have to report for that duty shortly. In response to this notification, he was reportedly told to leave his truck parked at the truck stop from which he was calling and to find his own way home.

The cost of towing the truck later was then deducted from the employee's final pay check, the government alleged. This resulted in a settlement of approximately $20,000 to the affected employee.

In another case, the government alleged that a sergeant in a Colorado sheriff's office was demoted and harassed at work after notifying his superiors that he had been called to active duty as an Army reservist. He was later fired.

Because all of the facts of this case have not yet been established and the employer staunchly maintains that there was no wrongdoing, this rather extreme case has all of the hallmarks of long and expensive litigation, which likely could have and should have been avoided.

While these are just a few examples of the conduct that has given rise to such claims, it is not difficult to envision a variety of other, similar scenarios that could easily develop and violate USERRA.

Identifying the initial signs that such scenarios might be developing in your workplace is more than worth your time, as it is expected that the number of these cases will rise.

Doing so will stand to save your company not only the expense of litigation, but also the publicity that may surround such a case. In explaining why some employers are choosing to quickly settle USERRA claims against them in his district, the Denver United States Attorney has recently been quoted as saying "most employers don't want to fight an action were the U.S. government is [representing and] fighting on behalf of an aggrieved reservist . . . it's not very good for business."

This is hardly disputable.

Thus, while USERRA is a multi-faceted and complicated federal law, there are practical and relatively inexpensive measures that you can take to help protect your company from USERRA claims. First, take some time with legal counsel to review your company's compliance with USERRA and related legislation. In doing so, you should remember that many states, including Louisiana and Texas, have enacted legislation that tracks USERRA and provides additional rights and responsibilities under state law.

The details of both the federal and state laws are important to your business and its potential exposure when re-introducing military personnel into your workplace. Second, remain vigilant so that you might spot the makings of a USERRA claim before things go too far.

This will not only help your business but it will help ensure fair treatment for those who have done so much for our country.

Editor's Note: G. Phillip Shuler is a partner in the New Orleans office of Chaffe, McCall, Phillips, Toler & Sarpy.