The City of Brockton, Massachusetts recently agreed to pay $32,356.84 to a United States Army  reservist to settle a lawsuit filed by the U.S. Department of Justice (DOJ). Brockton allegedly violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) when it failed to promote Army reservist Brian Benvie’s to police sergeant because he was away on military duty. USERRA generally requires that employers rehire returning military service personnel into positions similar to what the service members would have held if their military service had not interrupted their employment.

The DOJ claimed that Brockton failed to retroactively promote Benvie to sergeant, the rank he would have held had he not been called for reserve duty. Additionally, the DOJ alleged that Brockton denied Benvie the opportunity to take the October 2008 lieutenants’ promotional exam when he returned from service.

The settlement requires that Brockton provide Benvie with backpay and promote him to police lieutenant.

“The men and women who bravely serve our nation in the armed forces should not have to sacrifice their civilian career opportunities to do so.  Employers have a legal obligation to ensure returning service members are placed back into the appropriate position and status, when they return from military duty, as required by law,” said Thomas E. Perez, Assistant Attorney General for the Civil Rights Division.

A bipartisan group of seven senators have introduced legislation to expand the Uniformed Services Employment and Reemployment Rights Act (USERRA) to include protection for Transportation Security Administration (TSA) officers who are called to active duty.

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USERRA mandates that members of the uniformed services who hold civilian jobs are entitled to return to their civilian jobs upon completion of military service.

Transportation security officers (TSOs) employed by the TSA are currently excluded from USERRA protection. After the terrorist attacks of September 11, 2001, Congress included TSOs in a special category of federal employees considered critical to national security and exempted them from USERRA protection.

According to Senator Joseph Lieberman (D-CT), one of the bill’s sponsors, many transportation security officers “find themselves in a clearly unjust and inadvertent position.” Sen. Lieberman further noted that the proposed legislation would “simply require TSA to comply with USERRA, providing transportation security officers the protection of reemployment, to which every other type of worker – in both the private and public sectors – is eligible.” Sen. Lieberman is the chairman of the Senate Committee on Homeland Security and Governmental Affairs.

TSA has claimed that it voluntarily complies with USERRA, but without a legal mandate, National Guard members, reservists, and veterans who work as TSOs cannot be certain that they will be able to return to their jobs after a military deployment. According to the Veterans of Foreign Wars (VFW), at least two TSOs have attempted to appeal TSA actions under USERRA but were unsuccessful when both the Merit Systems Protection Board (MSPB) and the Office of Special Counsel ruled that they were not currently entitled to USERRA protections.

On November 21, 2011, President Obama signed into law the Veterans Opportunity Work (VOW) to Hire Heroes Act of 2011, which amended the Uniformed Service Employment and Reemployment Rights Act (USERRA). VOW protects employees against hostile work environment harassment based on an employee’s military service.

Congress passed VOW after the Fifth Circuit Court of Appeals ruled that no provision within USERRA allowed employees to file hostile work environment claims when harassed by supervisors or co-workers because of their military duties. Lawmakers added the exact language from Title VII of the Civil Rights Act of 1964 to USERRA to ensure that the same standard applies to harassment claims based on military status that applies to  claims based on other protected statuses such as race, religion, and sex.

In addition to making it easier for workers to sue their employers for harassment because of military status, the new law also provides tax credits to employers who hire unemployed veterans.

VOW takes immediate effect.  The Department of Labor will issue regulations that implement the changes.

The Department of Justice (DOJ) recently settled a lawsuit against Lowe’s, a major hardware department store chain, citing violations of the Uniform Services Employment and Reemployment Rights Act (USERRA). USERRA mandates employers to rehire employees returning from a military deployment and not to terminate their employment for at least one year.

The DOJ determined that Lowe’s violated USERRA when the company dismissed Matthew King, a U.S. Army National Guard soldier and Iraq War veteran, without just cause.  King began his employment with Lowe’s in April 2008.  In September 2008, King notified Lowe’s of his impending deployment to Iraq, where he performed his military duties until May 2010.  After King’s honorable discharge, Lowe’s reinstated him to his previous position.  King’s manager questioned King about King’s earlier pursuit of unemployment benefits when he returned from his deployment.  Although King had dropped his unemployment claim and had never received any unemployment benefits, Lowe’s fired him.

King then sought support from the Veterans’ Employment and Training Service (VETS).  VETS determined that Lowe’s had violated USERRA by firing King without just cause within a year of his rehiring.  VETS referred the case to the DOJ Civil Rights Division, which advocated on behalf of King.  Lowe’s and the DOJ reached a settlement in which Lowe’s agreed to compensate King with $45,000 in liquidated damages and back pay.

On September 30, 2011, the Department of Justice (DOJ) filed a lawsuit on behalf of Michael Schutz, a member of the United States Army Reserves, against the city of Truman, Minnesota for failing to rehire Schutz following his return from military duty.

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Truman allegedly violated USERRA by failing to restore Schutz to his position as a full-time police officer when he returned from military duty in Kuwait. After Schutz filed a USERRA claim, Truman put him on administrative leave for three weeks and gave him a termination notice.  The DOJ alleges these actions by Truman also violated USERRA by retaliating against Shutz for asserting his rights under USERRA.

The DOJ seeks compensation on behalf of Schutz for lost pay and benefits, and also claims that Shutz is entitled to double damages because Truman willfully violated Shutz’s rights under USERRA.  USERRA requires employers to reemp

oy returning service members in a timely manner and prohibits employers from retaliating against service members who assert their rights under USERRA.

“Just as our dedicated men and women of the military protect our freedoms overseas, we must protect their interests here at home,” said United States Attorney for the District of Minnesota B. Todd Jones.    “These soldiers have made many sacrifices, and we cannot allow the loss of a career or appropriate pay when they return home.”

On October 25th, the DC Bar will offer a course entitled “Changing Currents in Employment Law 2011: Recent Trends and Developments,” which will cover important recent developments in employment law.  The nation’s top employment attorneys will discuss various topics including the U.S. Equal Employment Opportunity Commission’s new regulations relating to the Americans with Disabilities Act Amendments Act of 2008 and the latest U.S. Supreme Court and U.S. Court of Appeals rulings on the proximate cause standard applied to employment cases.

While The Employment Law Group® principal attorney Scott Oswald will serve as the Faculty Chair for the course, principal attorney Adam Carter will present on “The Veterans’ Benefits Act of 2010 Amendments to the Uniformed Services Employment and Reemployment Rights Act.”  Signed into law on October 13, 2010, the Veterans’ Benefits Act of 2010 enhances veterans’ employment, provides care for homeless veterans, strengthens education benefits, and devotes funds to research for Gulf War veterans. The law also establishes the Servicemembers Civil Relief Act, which postpones and suspends particular civil obligations, such as mortgage payments and pending trials, while servicemembers are deployed. Carter will cover these topics in detail as well as explain how the new law amends provisions of the Uniformed Services Employment and Reemployment Rights Act.

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The U.S. Court of Appeals for the First Circuit affirmed a jury verdict of nearly $705k for veteran Stephen E. Fryer against A.S.A.P. Fire and Safety Corporation for violating the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C.  § 4311 et seq., Massachusetts anti-discrimination law, and Massachusetts wage law.

Fryer was employed by A.S.A.P. as a sprinkler service / sales representative in January 2006.  In addition to hourly compensation, Fryer received a ten percent commission on sales he made to new accounts.  In January 2007, he re-enlisted in the National Guard and deployed to Iraq in May 2007.  He returned to the U.S. in May of 2008 all the while keeping A.S.A.P. informed of his plans.

A.S.A.P. had hired another individual while Fryer was serving overseas, and had offered to rehire Fryer as a sprinkler helper, a job that had slightly higher hourly compensation but no opportunity for commissions and fewer perqs.  Fryer accepted the position but repeatedly voiced his desire to return to his preservice position.  Fryer was terminated October 2008, allegedly on grounds of absenteeism.

USERRA prohibits employers from denying members of the armed services “reemployment, [or] retention in employment . . . on the basis of [the employee's military service],” 38 U.S.C. §4311(a), and it grants members of the armed services a right to ”reemployment” following an absence “necessitated by reason of [military] service,” id. § 4312(a).  Thus, the court affirmed the district courts finding that A.S.A.P. had an obligation to reinstate Fryer upon his return from deployment.

USERRA permits the award of liquidated damages “if the court determines that the employer’s failure to comply with [USERRA] was willful.”  38 U.S.C. Sec. 4323(d)(1)(C).  Court affirmed violations showing a reckless disregard as to whether the conduct was prohibited by USERRA permit liquidated damages.  The court found that ASAP’s actions strongly support a conclusion that ASAP was deliberately indifferent regarding  its obligations under USERRA, stating:

Fryer  testified  that  when  he  expressed dissatisfaction that A.S.A.P. had not reinstated him in his preservice position, he was told by Joseph Sheedy, one of A.S.A.P.’s owners, that he “needed to prove [him]self” because Fryer had “left[A.S.A.P.] in a lurch” when he deployed and that the company “had suffered [because of] it.”  Fryer also testified that he received “an extremely angry phone call” from Brian Cote, one of A.S.A.P.’s owners, in which Fryer was told that he “needed to shut[his] mouth” regarding his requests for reinstatement to his preservice position because another employee “was in the job” and he was not going to move that employee out of the position.  Fryer  responded  to  Cote  by  informing  him  that  he  did,  in fact, expect  to  return  to  his  pre-service  position,  to  which  Coteresponded: “That’s not going to f***ing happen.”  In sum, A.S.A.P.’s admission that it was aware of its obligation to reinstate  Fryer,  coupled  with  Fryer’s  testimony  regarding  his interactions  with  A.S.A.P.’s  owners,  is  certainly  sufficient  to permit  a  reasonable  jury  to  conclude  that  A.S.A.P.  knew  of  its obligations  and  acted  with  reckless  disregard  in  refusing  to reinstate Fryer to his pre-service position.

Fryer was awarded:

• $505,748 plus interest, which includes $289,000 in emotional distress damages and double back pay because A.S.A.P. willfully violated the law; and
• $199,204.28 plus interest in attorneys’ fees and other litigation costs.

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Justice Scalia delivered the opinion of the Supreme Court in Staub v. Proctor Hospital, reversing the Seventh Circuit and holding that an employer is liable under USERRA when a supervisor’s discriminatory animus is the proximate cause of the adverse employment action against the employee even when the decision to take the adverse employment action was made by a neutral decision-maker. The Court held:

So long as the agent [or supervisor] intends, for discriminatory reasons, that the adverse action occur, he has the scienter required to be liable under USERRA. And it is axiomatic under [federal] tort law that the exercise of judgment by the decision-maker does not prevent the earlier agent’s action (and hence the earlier agent’s discriminatory animus) from being the proximate cause of the harm. Proximate cause requires only “some direct relation between the injury asserted and the injurious conduct alleged,” and excludes only those “link[s] that are too remote, purely contingent, or indirect.” Hemi Group, LLC v. City of New York, 559 U. S. 1, ___ (2010) (slip op., at 9) (internal quotation marks omitted).² We do not think that the ultimate decision-maker’s exercise of judgment automatically renders the link to the supervisor’s bias “remote” or “purely contingent.” The decision-maker’s exercise of judgment is also a proximate cause of the employment decision, but it is common for injuries to have multiple proximate causes. See Sosa v. Alvarez-Machain, 542 U. S. 692, 704 (2004). Nor can the ultimate decision-maker’s judgment be deemed a superseding cause of the harm. A cause can be thought “superseding” only if it is a “cause of independent origin that was not foreseeable.” Exxon Co., U. S. A. v. Sofec, Inc., 517 U. S. 830, 837 (1996) (internal quotation marks omitted).

In Staub’s case, the decision to fire him was made by the vice president of human resources who was unaware of the anti-military attitudes of Staub’s supervisors, but made her decision based on information provided by those supervisors. The Supreme Court holds that since his supervisors’ unlawful discrimination were a direct and foreseeable cause of Staub’s firing, Staub’s employer is liable under USERRA. This opinion will significantly enhance the ability of discrimination plaintiffs to avoid summary judgment. To learn more about USERRA and the special rights afforded the men and women in the U.S. military, click here.

In Bunting v. Town of Ocean City, Judge William M. Nickerson of the United States Court of Appeals for the Fourth Circuit partially reversed the lower court’s grant of summary judgment in a lawsuit by William Bunting who alleges that the Ocean City Police Department (“OCPD”) unlawfully denied him a promotion after he complained of a USERRA violation. 

During the time period referenced in the lawsuit, Bunting was a sergeant in the OCPD and also a member of the United States Coast Guard Reserve.  In February 2003, Bunting received orders to report for active duty and remained on active duty until September 2004.  While on active duty, the OCPD announced a promotion opportunity for one or more sergeants in the force, but Bunting missed the opportunity because he did not know how to check his work email remotely and was not informed about the opportunity until it was too late.  Bunting then filed a complaint under the Uniformed Services Employment and Reemployment Act (“USERRA”), alleging the OCPD unlawfully discriminated against him by denying him an opportunity to apply for the promotion while he was on active duty.  OCPD responded by asserting that Bunting might face disciplinary action. 

In 2005 and 2007, Bunting reapplied for other promotions, but was not selected.  Bunting then initiated a federal lawsuit alleging unlawful discrimination for denying him the first promotion opportunity and unlawful retaliation for denying him subsequent promotions because he filed a USERRA complaint. 

While the Fourth Circuit ruled that there was no evidence that OCPD actively took steps to prevent him from learning about the first promotion opportunity, the court more importantly concluded that there was an issue of material fact as to whether OCPD unlawfully retaliated against Bunting for filing his USERRA complaint.  When OCPD first learned that Bunting had complained of a USERRA violation, OCPD officials had internal affairs investigate Bunting and implied that Bunting would be disciplined for failing to comply with OCPD policies.  The court ruled that “these facts could lead a reasonable jury to find that Bunting may have received promotions in 2005 and 2007 if he had not engaged in protected activities, i.e., complaining to the mayor and filing a USERRA complaint. . . .”

Thus, Bunting’s USERRA lawsuit against the OCPD can now proceed in District Court.  To learn more about veterans’ rights and USERRA, click here.