Uniformed Services Employment and Reemployment Act: A Primer. And. FMLA Military Families Leave Amendments: An Overview

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1 Uniformed Services Employment and Reemployment Act: A Primer And FMLA Military Families Leave Amendments: An Overview Leisha Self American Federation of Government Employees, AFL-CIO Office of the General Counsel 80 F Street, NW Washington, D.C (202) selfl@afge.org

2 Uniformed Services Employment and Reemployment Act: A Primer Leisha Self The Uniformed Services Employment and Reemployment Rights Act, also known as USERRA, was signed into law on October 13, See 38 U.S.C It is the primary statute that addresses employment and reemployment rights for Military Reservists, as well as discrimination in employment on the basis of military status or service. Its purpose and effect was to strengthen and clarify the Veterans' Reemployment Rights (VRRA) Statute, which previously addressed the same matters, albeit less effectively. 20 C.F.R Effective January 18, 2006, the Department of Labor also issued regulations implementing the USERRA statute. See 20 C.F.R. Part 1002, et seq. The Office of Personnel Management has issued a separate body of regulations that implement USERRA for employees of Federal executive agencies. See 5 C.F.R. Part 353, et seq. The goals of USERRA are: (1) to encourage non-career service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service; (2) to minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for the prompt reemployment of such persons upon their completion of such service; and (3) to prohibit discrimination against persons because of their service in the uniformed services. 38 U.S.C (a). Moreover, the USERRA statute further sought to encourage Federal agencies to perform as a model employer in carrying out the provisions of this chapter. 38 U.S.C. 4301(b). USERRA provides employment and reemployment rights for members of the uniformed services, including veterans and members of the Reserve and National Guard. Under USERRA, service members who leave their civilian jobs for military service can perform their duties with the knowledge that they will be able to return to their jobs with the same pay, benefits, and status they would have attained had they not been away on duty. 38 U.S.C This is known as the escalator principle, meaning that an employee can absent him or herself from the work escalator for Military Reservist obligations and return to the same position on the escalator he or she would have been on without the intervening service period. 20 C.F.R USERRA also prohibits employers from discriminating against these individuals regarding any benefit of employment because of their military service. 38 U.S.C

3 The Supreme Court has made clear that USERRA and its predecessor statutes were and are to be liberally construed for the benefit of those who left private life to serve their country in its hour of great need. Fishgold v. Sullivan Drydock and Repair Corp., 328 U.S. 275, 285 (1946), cited in Alabama Power v. Davis, 431 U.S. 581, (1977); King v. St. Vincent's Hosp., 502 U.S. 215, 221 n. 9 (1991). Prior to the 2005 regulations, however, the courts and the Merit Systems Protection Board (which has jurisdiction over Federal employee USERRA matters) had not seemed particularly swayed by this admonition. In many cases, the courts and the MSPB appeared to rule against Military Reservists in situations in which they need not have. The 2005 Department of Labor regulations are aimed in part toward clarifying the employee friendly nature of the statute and attempting to address this bent: The Department [of Labor] intends that [the Supreme Court s] interpretive maxim [that the military leave and reemployment statute should be liberally construed for the benefit of those who left private life to serve their country in its hour of great need ] apply with full force and effect in construing USERRA and these regulations. 70 Fed. Reg (Dec. 19, 2005). As a result, while it is too early to tell, it is possible that -- between the regulations and the current political climate that is generally very supportive of the soldiers but not of the war 1 the courts and the MSPB will become more friendly towards the rights of Military Reservists. Who is Covered By USERRA USERRA applies to persons who perform duty, voluntarily or involuntarily, in the "uniformed services," which includes the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service Commissioned Corps, as well as the Reserve components of each of these services. Federal training or service in the Army National Guard and Air National Guard also gives rise to rights under USERRA. 38 U.S.C (13); 20 C.F.R As well, certain types of service specified in 42 U.S.C. 300 (hh-11) by members of the National Disaster Medical System are covered by USERRA. 20 C.F.R Uniformed service includes active duty, active duty for training, inactive duty training (such as drills), initial active duty training, and funeral honors duty performed by National Guard and Reserve members, as well as the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty. 38 U.S.C (13); see 20 C.F.R (providing the many different types of service covered). USERRA covers nearly all employees, including part-time, seasonal and probationary employees. The statute s terminology is any person employed by an employer. 38 U.S.C (3). While the statute s reemployment protections do not include employees in brief, non- 1 See, e.g., American Trucking Associations, U.S. Army Reserve Launch Motor Transport Military Civilian Partnership,news.yahoo.com/s/usnw/ /pl_usnw/american_trucking_associations u_s army_reserve_lau nch_motor_transport_military_civilian_partnership (April 14, 2008).

4 recurrent positions, those employees are nevertheless protected against discrimination under USERRA. 20 C.F.R The 2005 regulations explain the breadth of USERRA s employee coverage. See 20 C.F.R (c). Who is an Employer Under USERRA The definition of an employer under USERRA is quite broad. In fact, USERRA applies to virtually all U.S. employers, regardless of size. 38 U.S.C. 4303(4)(A) provides that the term employer means any person, institution, organization, or other entity that pays salary or wages for work performed or that has control over employment opportunities, including (i) a person, institution, organization, or other entity to whom the employer has delegated the performance of employment- related responsibilities; (ii) the Federal Government; (iii) a State; iv) any successor in interest to a person, institution, organization, or other entity referred to in this subparagraph; and (v) a person, institution, organization, or other entity that has denied initial employment in violation of section In the introductory portion of the regulations, the Department of Labor expounded on the breadth of USERRA's definition of "employer": it includes any person, institution, organization or other entity that pays salary or wages for work performed or that has control over employment opportunities, including... a person, institution, organization, or entity to whom the employer has delegated the performance of employment related responsibilities. 70 Fed. Reg , (Dec. 19, 2005); see also 38 U.S.C. 4303(4)(A)(i). The Department of Labor recognized that this definition supported the possibility even that individual supervisors could be found liable under USERRA. 70 Fed. Reg , (Dec. 19, 2005) (citing two earlier cases favorably for the proposition that supervisors individually could be found liable under USERRA); see Brandasse. v. City of Suffolk, 72 F.Supp.2d 608, (E.D.Va. 1999) (both a city, as a police officer's direct employer, and its director of personnel, who had authority over hiring and firing for the city, were subject to liability as "employers" under USERRA); Jones v. Wolf Camera, Inc., 1997 WL (N.D.Tex. 1997) (individual supervisors may be liable under USERRA as "persons" with control over hiring and firing and to whom the employer has delegated the performance of employmentrelated responsibilities); but see Satterfield v. Borough of Schuykill Haven, 12 F.Supp.2d 423 (E.D.Pa. 1998) (plaintiff could not bring an action under USERRA against individual members of a borough council, alleging that the council terminated him because of his military status, because such members did not have any individual power over the plaintiff and the plaintiff was not required to report to them individually); Brooks v. Fiore, 2001 WL (D. Del. 2001) (supervisor was not covered by USERRA because he did not have the power to hire and fire the plaintiff).

5 Thus, at least some courts have construed USERRA's definition of "employer" as including supervisors and managers in various cases. In those cases, however, the courts stated that they found no individual liability because the facts and circumstances of each case did not warrant it. 70 Fed. Reg , (Dec. 19, 2005). A review of those cases reveals instead a great reluctance by the courts toward finding individual liability. The regulations provide also that the definition of employer is broad enough to include hiring halls. 20 C.F.R Section notes that a hiring hall operated by a union or an employer association typically assigns the employee to the jobs. In these industries, it may not be unusual for the employee to work his or her entire career in a series of short-term job assignments. Since the definition of employer includes a person, institution, organization, or other entity to which the employer has delegated the performance of employment-related responsibilities, a hiring hall would be considered the employee's employer if the hiring and job assignment functions have been delegated by an employer to the hiring hall. Id. The Building and Construction Trades Department, AFL-CIO ("BCTD") commented on the proposed regulation, Section BCTD recommended eliminating this provision as hiring halls in the unionized construction industry represent an "arrangement" between the union and local employers to facilitate referral of available union members for work, rather than the employee s employer. That is, hiring halls do not perform any hiring or assignment functions beyond referring the number and types of workers requested by the employer. Commensurate with that, BCTD suggested that the multi-employer group using the hiring hall to obtain workers should be the "employer" rather than the hiring hall. In order to effectuate this suggestion, BCTD proposed that the Department modify the regulatory definition of "employer," 20 C.F.R (d), to state, "In industries in which exclusive hiring halls are utilized, all employers who are required to obtain applicants through a given hiring hall arrangement, may constitute a single employer under the Act." The final rules rejected that suggestion because of Congress's unambiguous intent that [the term employer] be read broadly to include entities, such as hiring halls, to whom job referral responsibilities have been delegated. See S. Rep. No , at 42 (1993); H.R. Rep , Pt. I, at 21(1993). As a result, as employers, hiring halls have statutory reemployment, anti-discrimination and anti-retaliation responsibilities to employees. 70 Fed. Reg , The next statutory provision specifies that the term employer includes the Federal Government, State governments, and any political subdivision thereof. 38 U.S.C (A)(ii and iii). Liability against the United States however is limited more so than for other employers. Specifically, liquidated damages (available against other employers) for willful violations are not available against the Federal Government. Compare 38 U.S.C (d)(1)(c) (liquidated damages available against State or private employer) with 38 U.S.C (actual damages only available against the Federal government).

6 Successors in interest are also included as employers pursuant to 38 U.S.C. 4304(A)(iv). Successorship is found where there is a substantial continuity in operations, facilities, and workforce from the former employer. 20 C.F.R This determination is made on a case-by-case basis using a multi-factor test that considers the following: (a) Whether there has been a substantial continuity of business operations from the former to the current employer; (b) Whether the current employer uses the same or similar facilities, machinery, equipment, and methods of production; (c) Whether there has been a substantial continuity of employees; (d) Whether there is a similarity of jobs and working conditions; (e) Whether there is a similarity of supervisors or managers; and, (f) Whether there is a similarity of products or services. 20 C.F.R Finally, the term employer also includes a person, institution, organization, or other entity that has denied initial employment in violation of section 4311, (the provision that covers discrimination). 38 U.S.C (A)(v). This definition merely confirms that the term employer includes potential employers as well, for purposes of USERRA s anti-discrimination in initial employment provision, 38 U.S.C. 4311, although obviously not for purposes of USERRA s reemployment provision. See 38 U.S.C Reemployment Rights Under USERRA Likely the most significant right USERRA affords to Military Reservists is the right to reemployment following military service. 38 U.S.C As a general rule, under the escalator principle, the employee is entitled to reemployment in the job position that he or she would have attained with reasonable certainty if not for the absence due to uniformed service. This includes the pay, benefits, seniority, and other job perquisites, that he or she would have attained if not for the period of service. 20 C.F.R USERRA provides an additional benefit for employees who have served over 31 days in the military. If the service member has served in the military between 31 and 180 days, he or she may not be discharged except for cause from the employment position within 180 days after reemployment. 38 U.S.C. 4316(c)(2). If the individual served over 180 days before reemployment, then he or she may not be discharged from the employment position within one year after reemployment except for cause. 38 U.S.C. 4316(c)(1); 70 Fed. Reg , This is an important protection for non-unionized employees, who otherwise may be at-will employees. These reemployment rights attaches if the employee leaves a position to perform service in the uniformed service, and:

7 38 U.S.C Notice The employee ensures that the employer receives advance written or verbal notice of the service; The employee has five years or less of cumulative service in the uniformed services while with that particular employer; The employee returns to work or applies for reemployment in a timely manner after conclusion of the service; and The employee has not been separated from service with a disqualifying discharge or under other than honorable conditions. The first requirement, generally speaking, for ensuring reemployment rights is that of prior notice to the employer. 38 U.S.C (a)(1) and (b). The statute specifies that any person... shall be entitled to the reemployment rights and benefits and other employment benefits of this chapter if (a)(1) the person (or an appropriate officer of the uniformed service in which such service is performed) has given advance written or verbal notice of such service to such person s employer U.S.C (a)(1). However, no notice is required under subsection (a)(1) if the giving of such notice is precluded by military necessity or, under all of the relevant circumstances, the giving of such notice is otherwise impossible or unreasonable. 38 U.S.C (b). The first and obvious point is that notice may be quite informal. The regulations clarify that the notice does not need to follow any particular format. 20 C.F.R For the employee s protection, however, it is always best to provide written notice and to retain a copy of that notice and a record that it was provided to the employer. Although USERRA does not specify how far in advance notice must be given to the employer, the regulations state that an employee should provide notice as far in advance as is reasonable under the circumstances. 20 C.F.R In regulations promulgated by the Department of Defense under USERRA, 32 C.F.R (a)(2)(i)(b), the Defense Department ``strongly recommends that advance notice to civilian employers be provided at least 30 days prior to departure for uniformed service when it is feasible to do so.'' Under the prior statute, the Veterans Reemployment Rights Statute, courts considered what constitutes reasonable notice and generally took a fairly liberal view toward the employee. In Gulf States Paper Corp. v. Ingram, 811 F.2d 1464 (11 th Cir. 1987) and Lee v. City of Pensacola, 634 F.2d 886 (5th Cir.1981), the Circuit Courts held that the process begins with the presumption that the Reservist's request for leave is reasonable. Those courts then enunciated three factors for consideration: the length of the leave, the reservist's actions in requesting leave, and the burden upon the employer in filling the reservist's position, but from there went

8 on to determine that in the absence of conduct akin to bad faith on the part of the employee, the reasonableness test is likely to be satisfied. Novak v. Mackintosh, 937 F. Supp. 873, 882 (D.S.D. 1996) (explaining Gulf States and Lee). The Third Circuit adopted what amounts to a totality of the circumstances test and did not make clear whether reasonableness should be presumed or whether the reservist has the burden of establishing it. Eidukonis v. Southeastern Penn. Transportation Auth., 873 F.2d 688, 698 (3d Cir.1989). In Novak v. Mackintosh, 937 F.Supp. 873 (D.S.D.1996), the court found that a Reservist s heads-up approximately oneweek in advance of the military obligation and then notice two days before the obligation was reasonable, even though the employee could have provided notice two weeks prior to the military obligation. The court was swayed by the fact that the Reservist only missed two days of work for that particular obligation. Id. The court found that the presumption of reasonableness from Gulf States [was] more in keeping with Congress's comprehensive protection of reserve military personnel through the VRRA.... Novak, 937 F. Supp. at 882. As noted above, USERRA further allows the notice to come from an appropriate officer. 38 U.S.C (a)(1). The regulations clarify that that an appropriate officer is a commissioned, warrant, or non-commissioned officer authorized to give such notice by the military service concerned. 20 C.F.R The statute exempts employees from the notice requirement in certain limited circumstances: when giving advance notice of pending service is prevented by military necessity, or is otherwise impossible or unreasonable under all the circumstances. 38 U.S.C (b). The determination of what constitutes military necessity that would excuse advance notice is made pursuant to regulations prescribed by the Secretary of Defense and shall not be subject to judicial review. 38 U.S.C (b). The regulations describing military necessity are at 32 C.F.R In general, those regulations cover situations where a mission, operation, exercise or requirement is classified, or could be compromised or otherwise adversely affected by public knowledge. In certain cases, the Secretary of Homeland Security, in consultation with the Secretary of Defense, can make a determination that giving of notice by intermittent disaster-response appointees of the National Disaster Medical System is precluded by ``military necessity.'' See 42 U.S.C. 300 hh-11(e)(3)(b). The impossible or unreasonable to give advance notice under all the circumstances exemption is given cursory treatment in the regulations. According to 20 C.F.R , such circumstances may include the unavailability of the employee's employer or the employer's representative, or a requirement that the employee report for uniformed service in an extremely short period of time. The regulations provide no further guidance. It should be noted that an employee is not required to get permission from the employer to leave for the military service. The employee only needs to provide notice. 20 C.F.R

9 Maximum of Five Years of Service Under USERRA, the second requirement for reemployment rights to attach is that generally the military service must not exceed a cumulative period of five years during employment by the particular employer. 38 U.S.C (a)(2) and (c). The regulations make clear that the five-year period is specific to each employer. That is, an employee is entitled to a leave of absence for uniformed service for up to five years with each employer for whom he or she seeks reemployment. 20 C.F.R ; see also 38 U.S.C (c). This is so with respect to an employee employed by more than one employer, even if those employers share or co-determine the employee's terms and conditions of employment. See 20 C.F.R The regulations also explain that the five-year period includes only actual uniformed service time. 20 C.F.R Periods of time preceding or following actual service are not included even if those periods may involve absences from the employment position for reasons that are service-related, for example, travel time to and from the duty station, time to prepare personal affairs before entering the service, delays in activation, etc. Id. Under Section 4312 (c) of the statute, there are eight specific exceptions to the five-year limit on uniformed service that allow an individual to serve longer than five years while working for a single employer and retain reemployment rights under USERRA. 38 U.S.C. 4312(c)(1)- (4)(A)-(E). The exceptions involve unusual service requirements, circumstances beyond the individual's control, or service (voluntary or involuntary) under orders issued pursuant to specific statutory authority or the authority of the President, Congress or a Service Secretary. 20 C.F.R implements this provision by describing each exception set out in the statute. The regulation also recognizes a ninth exception based on equitable considerations. A service member is expected to mitigate economic damages suffered as a consequence of an employer's violation of the Act. See Graham v. Hall-McMillen Co., Inc., 925 F. Supp. 437, 446 (N.D. Miss. 1996). If an individual remains in (or returns to) the service in order to mitigate economic losses caused by an employer's unlawful refusal to reemploy that person, the additional service is not counted against the five-year limit. See 70 Fed. Reg , Timely Reapplication In order to fully protect reemployment rights under USERRA, the returning service member also needs to make a timely return to, or application for reinstatement in, his or her employment position after completing the tour of duty. 38 U.S.C. 4312(a)(3). Sections 4312(e) and (f) establish the required steps of the reinstatement process. Section 4312(e) of USERRA establishes varying time periods for requesting reinstatement, and Section of the regulations explains that the three statutory time periods for making a request for reinstatement are dependent on the length of the period of military service.

10 For an employee reporting back for work following a period of service of less than 31 days, the employee must report at the beginning of the first full shift on the first full day following the completion of service, provided the employee has a period of eight hours to rest following safe transportation to the person's residence. 38 U.S.C. 4312(e)(1)(A)(i); see also H.R. Rep. No , Pt. I, at 29 (1993). For these shorter periods of service, the employee must actually report to work, as compared to the longer periods which require only application to return to work. If it is impossible or unreasonable for the employee to report within this time period, he or she must report to the employer as soon as possible after the expiration of the eighthour period. 38 U.S.C (e)(1)(a)(ii). A Reservist who has served between 31 and 180 days must make an oral or written request for reemployment no more than 14 days after completing service. If it is impossible or unreasonable for the employee to apply within 14 days through no fault of the employee, he or she must submit the application not later than the "next full calendar day after it becomes possible to do so." 38 U.S.C (e)(1)(c). Finally, if the individual served more than 180 days, he or she must make an oral or written request for reemployment no more than 90 days after completing service. 38 U.S.C. 4312(e)(1)(D). USERRA makes special provision for Reservists who are convalescing from a servicerelated illness or injury. 38 U.S.C. 4312(e)(2)(A). If the employee is hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of service, he or she must report to or submit an application for reemployment to the employer at the end of the period necessary for recovering from the illness or injury. This period may not exceed two years from the date of the completion of service, except that it must be extended by the minimum time necessary to accommodate circumstances beyond the employee's control that make reporting within the period impossible or unreasonable. 20 C.F.R ; see also 38 U.S.C. 4312(e)(2)(A). The Department of Labor regulations specify that the two-year recuperation period begins on the date of completion of the service. 20 C.F.R As a result, unless extended to accommodate circumstances beyond the control of the employee that make reporting within such period impossible or unreasonable, the entire period between the date of completion of service and the date of reporting to work or applying for reemployment can be no greater than two years, and there is not an additional extension of 14 or 90 days for applying for reemployment at the end of the recuperation period. However, because the recuperation period is coextensive with the 14- or 90-day application period under USERRA, the service member is entitled to whichever period is longer, but not both. 38 U.S.C. 4312(f)(1) explains the documentation that the service member gone for longer than 30 days must provide upon request by the employer. The employer may require the employee to provide documentation that the application is timely, that the Reservist has not exceeded the maximum length of service, and that the employee had the appropriate type of discharge (explained below). Id. However, 20 C.F.R provides that an employer is

11 required to reemploy a service member even if documentation establishing the service member's reemployment eligibility does not exist or is not readily available. The practicalities or real world implications are not discussed. However, it seems apparent that an employer bent on not reemploying the Reservist would simply decline to do so. If the employee thereafter litigated the matter, the employee would bear the burden of establishing eligibility for reemployment and without documentation that might prove difficult. While 38 U.S.C. 4312(a)(3) appears to make timely reporting or application for employment a necessary prerequisite to reemployment, there is a seemingly contradictory provision in the statute of which practitioners should be aware. Specifically, section 4312(e)(3) of the statute specifies that if the employee fails to timely report or timely request reinstatement, the employer s remedy is simply to enforce existing workplace rules, policies and practices that ordinarily apply to an employee's unexcused absence from work. Section 4312 (e)(3) further specifies that the failure timely to apply or report does not automatically divest the individual of his or her statutory reemployment rights. In other words, under Section 4312 (e)(3) the employer may need to return the Reservist employee to work and then, if it would have terminated other employees for similar unexcused absences, it could terminate the Reservist employee for the unexcused absence during the period he or she should have reported or applied for reinstatement to work. Another possibility is that the employer needs at least to take affirmative steps regarding its disciplinary processes for unexcused absences even though it does not as yet have the employee on the employment rolls. Either way, section 4312 (e)(3) seems to require that the employer take some affirmative action beyond simply declining to reemploy the Reservist. Caselaw appears to ignore this provision, however. One such case is McGuire v. United Parcel Service, 152 F.3d 673, 677, 158 L.R.R.M. (BNA) 3085, 135 Lab. Cas. (CCH) (7th Cir. 1998). In that case, McGuire was discharged from active military service on June 30, Thereafter, he sent a letter to his supervisor, Segovia, asking about the procedures for getting my job back and further requested that, if his supervisor could not answer this please pass it on to someone who can. The supervisor Segovia responded to McGuire's letter: Dave- The law specifies there are no requirements for reemployment. Please touch bases w/ Ed LeBel (HR) upon your return. Look to see you- John Segovia. When McGuire received the letter, he interpreted the first sentence to mean that UPS was not required to reemploy him. After several attempts to contact Segovia failed, McGuire filed suit. UPS contended that what the supervisor Sergovia meant by the first sentence of the letter was that there were no particular procedures McGuire had to follow and that McGuire should simply come back to work.

12 The Seventh Circuit held that McGuire did not comply with notice procedures for reapplication. The court held that what constitutes application for reemployment is determined on a case-by-case basis, focusing on the intent and reasonable expectations of both the former employee and employer, in light of all the circumstances. According to the court, what UPS needed to comply with the statute was notice that McGuire was a returning serviceman, previously employed by UPS, who was seeking reemployment. UPS is a large organization. Notice to one person may or may not constitute notice under the statute.... Reasonable notice to a large corporation in light of all the circumstances, id., at 439, is quite a different thing from reasonable notice to a small employer. 152 F. 3d at 677. As a result, the court held that McGuire did not give reasonable notice that he wanted his job back, and thus was not entitled to reemployment. Id. This case, and others like it, are odd in light of 38 U.S.C. 4312(e)(3), as the import of that provision seems to be that the employer has an affirmative obligation either to reemploy the returning service member and then invoke its procedures for termination for absences or to take some specific action before employment regarding the service member s unexcused absence. Neither was done in the McGuire case. It is possible that, following issuance of the 2005 regulations, the McGuire case would be decided differently. In fact, in the regulations the Department of Labor specifically rejected comments to the proposed regulations encouraging the employee to notify [the employee's] human resources officer and... supervisors as soon as practicable," and to follow the employer s established channel for receiving employment or reemployment applications.... The Department of Labor viewed both suggestions as ones that can be construed as imposing on service members obligations not set forth in the statute. 70 Fed. Reg , This language indicates that the Department of Labor regulations would not impose the kind of obligations the court did upon Mr. McGuire. It is also possible that the court determined that Mr. McGuire never actually made an application for reemployment. Character of Service USERRA also makes entitlement to reemployment dependent on the characterization of an individual's separation from the uniformed service, or "character of service." 38 U.S.C The general requirement is that the individual's service separation be under other than dishonorable conditions. 20 C.F.R Specifically, the four grounds for terminating the individual's reemployment rights based on character of service are: (i) dishonorable or bad conduct discharge; (ii) "other than honorable" discharge as characterized by the regulations of the appropriate service Secretary; (iii) dismissal of a commissioned officer by general courtmartial or Presidential order during a war (10 U.S.C. 1161(a)); and, (iv) removal of a commissioned officer from the rolls because of unauthorized absence from duty or imprisonment by a civil authority (10 U.S.C. 1161(b)). 38 U.S.C. 4304(1)-(4). The uniformed services determine the individual's character of service, which is referenced on Defense Department Form

13 214. See 20 C.F.R For USERRA purposes, Reservists who do not receive character of service certificates are considered honorably separated; many short-term tours of duty do not result in an official separation or the issuance of a Form 214. Statutory Defenses USERRA provides three statutory defenses that an employer may assert against a claim for USERRA benefits. The employer bears the burden of proving any of these defenses. 38 U.S.C. 4312(d)(2)(A)-(C); 20 C.F.R An employer is not required to reemploy a returning service member if the employer's circumstances have so changed as to make reemployment impossible or unreasonable. 38 U.S.C. 4312(d)(1)(A). The USERRA regulations specify that, in view of USERRA's remedial purposes, this exception must be narrowly construed. 70 Fed. Reg.75246, According to the regulations, the change must be in the pre-service employer's circumstances, as distinguished from the circumstances of its employees. Id., at For example, the defense of changed circumstances is available where reemployment would require the creation of a "useless job or mandate reinstatement where there has been a reduction in the workforce that reasonably would have included the veteran." H.R. Rep. No , Pt. I, at 25 (1993), citing Watkins Motor Lines v. De Galliford, 167 F.2d 274, 275 (5th Cir. 1948); Davis v. Halifax County School System, 508 F. Supp. 966, 969 (E.D. N.C. 1981). However, an employer cannot establish that it is unreasonable or impossible to reinstate the returning service member solely by showing that no opening exists at the time of the reemployment application or that another person was hired to fill the position vacated by the veteran, even if reemploying the service member would require terminating the employment of the replacement employee. See Davis, at 968; see also Cole v. Swint, 961 F.2d 58, 60 (5th Cir. 1992); Fitz v. Bd. of Education of Port Huron Area Schools, 662 F. Supp. 1011, 1015 (E.D. Mich. 1985), aff'd, 802 F.2d 457 (6th Cir. 1986); Anthony v. Basic American Foods, Inc., 600 F. Supp. 352, 357 (N.D. Cal. 1984); Goggin v. Lincoln St. Louis, 702 F.2d 698, 704 (8th Cir. 1983). An employer also can defend on the basis that reemployment would impose an undue hardship on the employer. 38 U.S.C (d)(1)(b). As explained in USERRA's legislative history, this defense only applies where a person is not qualified for a position due to disability or other bona fide reason, after reasonable efforts have been made by the employer to help the person become qualified. H.R. Rep. No , Pt. I, at 25 (1993). USERRA defines "undue hardship" as actions taken by the employer requiring significant difficulty or expense when considered in light of the factors set out in 38 U.S.C. 4303(15). USERRA defines "reasonable efforts" as "actions, including training provided by an employer, that do not place an undue hardship on the employer," 38 U.S.C. 4303(10), and "qualified" as having the ability to perform the essential tasks of the position. 38 U.S.C. 4303(9). The USERRA regulations specifically adopt the regulatory definition of "essential functions" under the Americans with Disabilities Act, 42 U.S.C et seq., as applicable to essential tasks under USERRA.

14 70 Fed. Reg , Other than regarding the definition of essential tasks, the USERRA regulations do not adopt full scale the ADA s regulatory definitions, and clearly the definition of disability under USERRA is not as stringent as disability as defined by the ADA. The third statutory defense against reemployment requires the employer to establish that "the employment from which the person leaves to serve in the uniformed services is for a brief, non-recurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period." 38 U.S.C. 4312(d)(1)(C), (2)(C). USERRA does not define "significant period." Under both USERRA and its predecessor, the VRRA, a person holding a seasonal job may have reemployment rights if there was a reasonable expectation that the job would be available at the next season. See, e.g., Stevens v. Tennessee Valley Authority, 687 F.2d 158, (6th Cir. 1982), and cases cited therein; S. Rep. No , at (1993). Disabled Employees USERRA imposes additional requirements on employers in circumstances involving the reemployment of a service member disabled during the period of his or her service. A disabled service member is entitled, to the same extent as any other individual (under the escalator position), to the position he or she would have attained but for military service. If the disability is not an impediment to the service member's qualifications for the escalator position, then the disabling condition is irrelevant for USERRA purposes. If the disability limits the service member's ability to perform the job, however, the statute imposes a duty on the employer to make reasonable efforts to accommodate the disability. 38 U.S.C. 4313(a)(3). In some instances, an employer is unable to accommodate a service member's disability despite reasonable efforts. If, despite the employer's reasonable efforts to accommodate the disability, the returning disabled service member cannot become qualified for his or her escalator position, that person is entitled to be reemployed "in any other position which is equivalent in seniority, status, and pay, the duties of which the person is qualified to perform or would become qualified to perform with reasonable efforts by the employer." 38 U.S.C. 4313(a)(3)(A). If no such position exists, the service member is entitled to reemployment "in a position which is the nearest approximation... in terms of seniority, status, and pay consistent with circumstances of such person's case." 38 U.S.C. 4313(a)(3)(B); see, e.g., Blake v. City of Columbus, 605 F. Supp. 567, 571 (D. Ohio 1984). Waiver of Rights? Can an individual waive his or her rights to reemployment? Pursuant to section 4316(b)(2)(A) of USERRA and the clarifying regulations, 20 C.F.R , an employee cannot waive rights to reemployment prior to or during military service. The employee may only waive, pursuant to written notice, non-seniority based benefits to which he or she is entitled under section 4316(b)(1) of the statute. For example, if prior to departure for military service, or

15 during military service, an employee sends his or her employer a letter that states that the employee will not be returning to his or her pre-service employment after military service, the employee may have waived his or her entitlement to non-seniority based benefits, depending on whether the elements of waiver have been met. However, if the same employee changes his or her mind after sending the letter, and decides that he or she will seek reemployment, the employee may do so, despite having sent the letter. This prohibition against waiving reemployment rights implements the long-standing legal principle that an employee departing for service is not required to decide at that time whether he or she intends to return to the pre-service employer upon completion of the tour of duty. Rather, the employee may defer the decision until after he or she concludes the period of service, and the employer may not press the employee for any assurances about his or her plans. 20 C.F.R ; see also H.R. Rep. No , Pt. I, at 26 (1993) ("One of the basic purposes of the reemployment statute is to maintain the service member's civilian job as an 'unburned' bridge.") and S. Rep. No , at 47 (1993), both of which cite Fishgold v. Sullivan Drydock and Repair, 328 U.S. 275, 284 (1946). Protection From Employer Discrimination and Retaliation USERRA also prohibits an employer from engaging in acts of discrimination against past and present members of the uniformed services, as well as applicants to the uniformed services. 38 U.S.C. 4311(a). The anti-discrimination prohibition applies to both employers and potential employers and prohibits discrimination in initial employment, reemployment, retention in employment, promotion, or any benefit of employment.... Id. USERRA also protects any person who participates in an action to protect past, present or future members of the uniformed services in the exercise of their rights under the Act. 38 U.S.C. 4311(b). Evidentiary Requirements An employer is determined to have engaged in prohibited discrimination if the military service is a motivating factor in the employer s action, unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service or obligation for service U.S.C (c). USERRA s legislative history explains that Congress intended that the evidentiary scheme set forth by the United States Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393, 401 (1983), apply to the analysis of discrimination violations under USERRA. See S. Rep. No , at 45 (1993), and H.R. Rep. No , Pt. I, at 18, 24 (1993); see also Gummo v. Village of Depew, NY, 75 F.3d 98, 106 (2d Cir. 1996) (citing USERRA's legislative history); Sheehan v. Dept. of the Navy, 240 F.3d 1009, (Fed. Cir. 2001) (same).

16 Under this structure, the initial burden of proving discrimination or retaliation rests with the person alleging it. The claimant alleging discrimination must prove the elements of a violation--i.e., membership in a protected class (such as past, present or future affiliation with the uniformed services); an adverse employment action by the employer or prospective employer; and a causal relationship between the claimant's protected status and the adverse employment action (the "motivating factor"). See Robinson v. Morris Moore Chevrolet-Buick, Inc., 974 F.Supp. 571 (E.D. Tex. 1997). To meet this burden, a claimant need not show that his or her protected activities or status was the sole cause of the employment action; the person's activities or status need be only one of the factors, albeit a motivating factor that "a truthful employer would list if asked for the reasons for its decision." Kelley v. Maine Eye Care Associates, P.A, 37 F. Supp.2d 47, 54 (D. Me. 1999); see Robinson, 974 F. Supp. at 575 (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 250 (1989) (addressing Title VII gender discrimination claim and related defense)). "Military status is a motivating factor if the defendant relied on, took into account, considered, or conditioned its decision on that consideration." Fink v. City of New York, 129 F.Supp.2d 511, 520 (E.D.N.Y. 2001), citing Robinson, 974 F.Supp. at 576. After the employee establishes the elements of an alleged violation, the employer may avoid liability by proving by a preponderance of the evidence that the claimant's military activities or status was not a motivating factor in the adverse employment action. See Gummo, 75 F.3d at 106. At this stage, the employer carries the burden to prove as an affirmative defense that it would have taken the action anyway, without regard to the employee's protected status or activity. Sheehan, 240 F.3d at C.F.R and.23 reflect this evidentiary structure. Section 4311(c)(2) provides the same evidentiary framework for adjudicating allegations of reprisal against any person (including individuals unaffiliated with the military) for engaging in activities to enforce a protected right; providing testimony or statements in a USERRA proceeding; assisting or participating in a USERRA investigation; or exercising a right provided by the statute. 38 U.S.C. 4311(c)(2). The prohibition on discrimination applies to any employment position, regardless of its duration, including a position of employment that is for a brief, non-recurrent period, and for which there is no reasonable expectation that the employment position will continue indefinitely or for a significant period. 20 C.F.R This should be compared with the reemployment provisions of the statute. For brief, non-recurrent employment (for which there is no reasonable expectation of continued employment), there would be no protection in the reemployment area. 38 U.S.C. 4311(d) and 4312(d)(1)(C); S. Rep. No , at 46 (1993).

17 Enforcement Department of Labor Assistance USERRA authorizes the Secretary of Labor, through its Veterans' Employment and Training Service (VETS), to provide assistance to any person regarding the employment and reemployment rights and benefits provided under the statute. 38 U.S.C The purpose is to promote the resolution of USERRA complaints without resort to litigation. 70 Fed. Reg , 75286; 20 C.F.R Any person claiming rights or benefits under USERRA may file a complaint with VETS if his or her employer fails or refuses to comply with the provisions of USERRA, or indicates that it will not comply in the future. 38 U.S.C. 4322(a). VETS does not have authority to order compliance with USERRA, and may only instead make reasonable efforts to ensure compliance. 20 C.F.R If VETS efforts do not resolve the matter, the Reservist may request that VETS refer the complaint to the Attorney General. 38 U.S.C. 4323(a); 20 C.F.R and If the Attorney General is reasonably satisfied that the complaint is meritorious, he or she may initiate legal action. Id. Court Litigation Alternatively, an individual may file a complaint directly in the appropriate court, as pursuing the USERRA matter first with VETS and then with the Attorney General is optional. Palmatier v. Michigan Dept. of State Police, 1996 WL (W.D. Mich. 1996); see Gagnon v. Sprint Corp., 284 F.3d 839, 854 (8th Cir.), cert. denied, 537 U.S (2002); 20 C.F.R and Against private employers or political subdivisions of a State, the individual may bring suit in United States district court. 20 C.F.R (c). Against a State as the employer, the individual must sue in a State court of competent jurisdiction according to the laws of the State. 20 C.F.R (b). Against the Federal government, the individual can bring an action before the United States Merit Systems Protection Board. 38 U.S.C (c). The proper defendant in the USERRA action is the employer or potential employer. 20 C.F.R Where a collective bargaining agreement is implicated and needs to be interpreted, the regulations specifically allow an interested party to intervene. Id. Presumably, that interested party would be the union. Collective Bargaining Agreements and Choice of Forum A current, particularly thorny issue is determining the appropriate forum for pursuing a USERRA claim where the underlying employment action falls within the provisions of a collectively-bargained grievance procedure. In the earlier cases that addressed this issue, the courts held that USERRA claims were to be litigated under the jurisdictional framework set up in

18 the USERRA statute (U.S. district court against private employers, State court against States, and MSPB against the Federal government) and that arbitration agreements (including negotiated grievance procedures) were superseded. See, e.g., Lopez v. Dillard s Inc., 382 F. Supp. 2d 1245 (D. Kan. 2005); Garrett v. Circuit City Stores, Inc., 338 F.Supp.2d 717 (N.D.Tex. 2004); Breletic v. CACI, Inc., 413 F. Supp 2d 1329 (N.D. Ga. 2006). This was because USERRA specifies that This chapter supersedes any State law (including any local law or ordinance), contract, agreement, policy, plan, practice, or other matter that reduces, limits, or eliminates in any manner any right or benefit provided by this chapter, including the establishment of additional prerequisites to the exercise of any such right or the receipt of any such benefit. 38 U.S.C In Lopez, the arbitration agreement mandated that the employee seek relief in the arbitral forum for any employment matter. On the employer s motion to compel binding arbitration, the court reasoned that [s]ince that type of proceeding was not addressed in the USERRA, it stands as an additional prerequisite to the exercise of plaintiff's rights and the receipt of any benefits to which she might be entitled under the act. Hence, the plain language of 38 U.S.C. 4302(b) requires that the arbitration agreement be superseded by the USERRA. Lopez, 382 F. Supp. 2d at The court even went further than refusing to compel arbitration, stating that nowhere in the USERRA did Congress provide for arbitration as a means to obtain the rights granted in that act. Id. This language would indicate that any bargaining unit member who sought to use the negotiated grievance procedure for his or her USERRA claims could not do so. However, in 2007, the Federal Circuit decided Pittman v. Dep t of Justice, 486 F. 3d 1276 (2007). In that case, the Bureau of Prisons reemployed Mr. Pittman for one shift following his return from service in Operation Iraqi Freedom and then removed him for offenses committed during his military service. Id., at He and his Union grieved the removal. Thereafter, Mr. Pittman filed a USERRA appeal over substantially the same matter with the MSPB. Id., at Under the Federal Labor Relations Statute, an individual may elect to grieve a removal or file an appeal with the Board. 5 U.S.C (c). Whichever the individual does first is deemed the election and that election precludes jurisdiction in the other forum. Id. Without considering the impact of USERRA s broad supersession clause, 38 U.S.C or even mentioning it in the majority or dissenting opinions the Federal Circuit (which is the MSPB s reviewing body) held that Mr. Pittman had elected his remedy regarding removal (by grieving it) and the MSPB as a result did not have jurisdiction over his similar USERRA claim. Pittman, 486 F. 3d at This case -- standing alone raised questions about the appropriate forum for USERRA claims in situations where a collective bargaining agreement covers similar matters, as courts previously understood USERRA to require claimants to use the jurisdictional framework set out