Uniformed Services Employment and Reemployment Rights Act (USERRA)

We just commented two days ago (blog of May 22nd) that Wisconsin just passed a law which eliminated compensatory and punitive damages to plaintiffs who prove employment discrimination, and noted that veterans groups contend that it is veterans who “are the big losers” under the new law.

Their claim is that veterans face similar limits on available damages in federal court (which do not apply to other protected classes under the federal law), and so now vets have no remedy in state court for damages arising out of stressful deployments and “the kinds of emotional pain and suffering that compensatory damages are meant to address.”

While it does not appear related to the change in the Wisconsin law, Senator Casey of Pennsylvania has nonetheless just introduced a bill in the Senate, the “Servicemembers’ Access to Justice Act,” which would “strengthen existing laws that prohibit discrimination against returning veterans in the workplace.” Among other things, the bill would “add minimum liquidated damages for willful violations and punitive damages for violations committed with malice.” See phillyBurbs.com

The timing may be coincidental, but the bill, if passed, may fill the gap which the vets claim has been opened in Wisconsin.
 

For veterans with service related disabilities who seek new employment or to return to their previous employment, and for employers who want to know what laws apply to such applicants or employees, such as USERRA and the ADA, we highly recommend that you visit and read the very helpful EEOC online fact sheet which is written in a simple question and answer format.    

The United States Supreme Court has declined to review the Fifth Circuit decision Carder v. Continental Airlines, Inc. that decided, as a matter of first impression, that the Uniformed Services Employment and Reemployment Rights Act ("USERRA") does not create a hostile work environment cause of action.

 

For now, that means that employers in the Fifth Circuit will only have to make sure that they are complying with USERRA’s benefits continuation, seniority rights, and reemployment provisions.  This is likely not the end of the story, however.

 

As the Carder case noted, several circuits have assumed, without deciding, that a hostile work environment claim could be raised under USERRA.  Those cases are exceptionally limited, but do exist.  For example, courts in the First, Ninth and Eleventh Circuits all assumed that such a claim could be raised but declined to decide the issue.  In Vickers v. City of Memphis, the District Court for the Western District of Tennessee did affirmatively decide that a hostile work environment claim could be raised.  It will be interesting to see whether any other courts in the Sixth Circuit decide the issue the same way.

 

While the issue remains undecided, the safer course of action is to treat returning service members the same as any other person who has engaged in protected activity (reporting discrimination, requesting family leave, etc.) — which is to say — carefully.