Uniformed Services Employment Reemployment Rights Act USERRA

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Uniformed Services Employment Reemployment Rights Act USERRA

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Title: Uniformed Services Employment Reemployment Rights Act USERRA

1
Uniformed Services Employment Reemployment Rights
Act (USERRA)

Discrimination
38 U.S.C. 4311(a).
Stanley K. Williams
Director, Veterans Employment and
Training
District of Columbia
202.671.2143
williams-stanley_at_dol.gov

2
Format

Authority
Definitions of Veteran Eligibility, Employers,
Discrimination
OSC PPPs
Regulations
Evidentiary Analysis/Review

3
VETS Statutory Authority

38 U.S.C. 4102A The Secretary of Labor,
acting through the Veterans Employment and
Training Service (VETS) is charged with
administering the USERRA statute.
38 U.S.C. 4321, 4322, and 4331, VETS shall
assist any person with respect to employment and
reemployment rights and benefits, will conduct
investigations of alleged violations in both
Federal and non-Federal sectors, and may
promulgate regulations implementing the
provisions of the statute with respect to States,
local governments and private employers.
38 U.S.C. 4333, The Secretary, the Secretary
of Defense, and the Secretary of Veterans Affairs
shall take such actions as such Secretaries
determine are appropriate to inform persons
entitled to rights and benefits under this
chapter and employers of the rights, benefits,
and obligations of such persons and such
employers under this chapter.

4
Discrimination Defined Under USERRA

Generally means any adverse action taken by an
employer based upon an employees military status
or obligations
No employer may deny a person initial employment,
reemployment, retention in employment, promotion,
or any benefit of employment based on the
persons membership, application for membership,
performance of service, application to perform
service, or obligation for service in the
uniformed services.
38 U.S.C. 4311(a)

5
Discrimination Under USERRA

USERRA 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.

6
Who is Covered?

Prospective members of the U.S. armed services
Current members of the U.S. armed services
Past members of the U.S. armed services
(veterans)
Reserve components (Reserve, National Guard) and
National Disaster Medical Service (NDMS) personnel

7
Prohibited Personnel Practices (PPPs)

Office of Special Counsel has jurisdiction over
PPPs.
Twelve prohibited personnel practices, including
reprisal for whistleblowing, are defined by law
at 2302(b) of title 5 of the United States Code
(U.S.C.). A personnel action (such as an
appointment, promotion, reassignment, or
suspension) may need to be involved for a
prohibited personnel practice to occur. Generally
stated, 2302(b) provides that a federal
employee authorized to take, direct others to
take, recommend or approve any personnel action
may not
(1) discriminate against an employee or
applicant based on race, color, religion, sex,
national origin, age, handicapping condition,
marital status, or political affiliation
VETS advises all claimants (Federal) with
potential PPP issues that they may file a
complaint with OSC

8
USERRA Final Regulations

20 C.F.R. Part 1002, effective January 18, 2006
Written in plain-English in a
question-and-answer format
Covers all aspects of USERRA as it relates to
private employers and state and local governments
Covers topics that VETS determined are important
to employers and protected persons based on over
ten years of responding to requests for
information

9
USERRA Complaint Ratio
Global War on Terrorism
10
Hypothetical not addressed

Each individual case involving an issue under
USERRA must be decided based on the specific
facts of that case, with all the attendant and
potentially influential details, together with
the appropriate and applicable legal standards.

11
Unique questions during an interview

We conclude that it is not unlawful in itself
for a prospective employer to ask an applicant
about military service or obligations. . . . in
many instances a prospective employees military
experience may enhance his or her potential value
to the employer. . . . if information elicited in
response to such questions forms the basis of the
employers decision not to hire the applicant, or
to take other adverse action against the person
once hired, the inquiries may constitute evidence
of unlawful discrimination.

12
Employer Defined

In comparison to the ADA, the ADEA, and Title
VII of the Civil Rights Act, USERRAs definition
of employer is unique. USERRA imposes
liability for violations upon any person
who has control over employment
opportunities including a person to
whom the employer has delegated the performance
of employment-related responsibilities. 38
U.S.C. 4303(4)(A)(i)

13
QUESTIONS?
14
5 Minute break
15
Departments Intent (Preamble)

Proposed sections 1002.18, 1002.19 and
1002.20 implement the protections of section
4311(a) and (b). Proposed section 1002.21 makes
clear that the prohibition on discrimination
applies to any employment position, regardless of
its duration, including a position of employment
that is for a brief, nonrecurrent period, and for
which there is no reasonable expectation that the
employment position will continue indefinitely or
for a significant period.
70 Fed. Reg. 75249 (December 19, 2005).

16
Examples

. . . A life guard at a swimming pool or a
football coach are temporary, seasonal positions,
and such positions enjoy both the
anti-discrimination/anti-retaliation and the
reemployment protections afforded under USERRA.
38 U.S.C. 4311(d) and 4312(d)(1)(C)

17
Examples, contd.

An employment contract that covers a onetime-
only, three-month-long position. Such brief,
non-recurrent positions enjoy the protections
afforded by USERRAs anti-discrimination/antiretal
iation provisions, but are not protected by the
statutes reemployment provisions.
38 U.S.C. 4312(d)(1)(C)

18
Congressional Intent (Evidence)

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 violations
under USERRA

19
Congressional Intent, Contd.

Under this structure, in order to establish a
case of employer discrimination, the persons
membership, application for membership,
performance of service, application for service,
or obligation for service in the uniformed
services must be a motivating factor in the
employers actions or conduct. 38 U.S.C.
4311(c)(1).
The initial burden of proving discrimination or
retaliation rests with the person alleging
discrimination (the claimant). A person alleging
discrimination under USERRA must first establish
that his or her protected activities or status as
a past, present or future service member was a
motivating factor in the adverse employment action

20
Establishing a Prima-Facie Claim

The claimant alleging discrimination must prove
the elements of a violationi.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 claimants protected status and the
adverse employment action (the motivating
factor). 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 persons activities or status need be
only one of the factors that a truthful
employer would list if asked for the reasons for
its decision.
Military status is a motivating factor if the
employer relied on, took into account,
considered, or conditioned its decision on that
consideration.

21
Prima-facie Claim, contd.

The employee is not required to provide direct
proof of employer animus at this stage of the
proceeding intent to discriminate or retaliate
may be established through circumstantial
evidence.
The Department notes that good faith contacts
with the military to express legitimate concerns
about timing, frequency, and duration of an
employees military service do not evidence a
discriminatory motive.
USERRA prohibits the denial of any benefit of
employment on the basis of military service
obligations, see section 1002.18, and it bears
emphasis in response to this inquiry that USERRA
includes an employees opportunity to select
work hours as a benefit of employment, See
38 U.S.C. 4303(2) 20 C.F.R. 1002.5(b).
Where a neutral employment policy provides that a
promotional exam shall only be administered on a
particular date to all employees, it may
constitute discrimination to refuse to allow
veterans away on leave on the date in question to
take a make-up exam upon their return from
service.

22
Regulatory Provisions

1002.18 What status or activity is protected from
employer discrimination by USERRA? An employer
must not deny initial employment, reemployment,
retention in employment, promotion, or any
benefit of employment to an individual on the
basis of his or her membership, application for
membership, performance of service, application
for employment
1002.19 What activity is protected from employer
retaliation by USERRA? An employer must not
retaliate against an individual by taking any
adverse employment action against him or her
because the individual has taken an action to
enforce a protection afforded any person under
USERRA testified or otherwise made a statement
in or in connection with a proceeding under
USERRA assisted or participated in a USERRA
investigation or, exercised a right provided for
by USERRA.
1002.20 Does USERRA protect an individual who
does not actually perform service in the
uniformed services? Yes. Employers are prohibited
from taking actions against an individual for any
of the activities protected by the Act, whether
or not he or she has performed service in the
uniformed services.

23
Regulatory Example

1002.21 Do the Acts prohibitions against
discrimination and retaliation apply to all
employment positions?
The prohibitions against discrimination and
retaliation apply to all covered employers
(including hiring halls and potential employers,
see sections 1002.36 and .38) and employment
positions, including those that are for a brief,
nonrecurrent period, and for which there is no
reasonable expectation that the employment
position will continue indefinitely or for a
significant period. However, USERRAs
reemployment rights and benefits do not apply to
such brief, nonrecurrent positions of employment.

24
Regulatory Requirements (burden of proof)

1002.22 Who has the burden of proving
discrimination or retaliation in violation of
USERRA?
The individual has the burden of proving that
a status or activity protected by USERRA was one
of the reasons that the employer took action
against him or her, in order to establish that
the action was discrimination or retaliation in
violation of USERRA. If the individual succeeds
in proving that the status or activity protected
by USERRA was one of the reasons the employer
took action against him or her, the employer has
the burden to prove the affirmative defense that
it would have taken the action anyway.

25
Elements of Burden of Proof

1002.23 What must the individual show to
carry the burden of proving that the employer
discriminated or retaliated against him or her?
(a) In order to prove that the employer
discriminated or retaliated against the
individual, he or she must first show that the
employers action was motivated by one or more of
the following
(1) Membership or application for membership in
a uniformed service
(2) Performance of service, application for
service, or obligation for service in a uniformed
service
(3) Action taken to enforce a protection
afforded any person under USERRA
(4) Testimony or statement made in or in
connection with a USERRA proceeding
(5) Assistance or participation in a USERRA
investigation or,
(6) Exercise of a right provided for by USERRA.
(b) If the individual proves that the employers
action was based on one of the prohibited motives
listed in paragraph (a) of this section, the
employer has the burden to prove the affirmative
defense that the action would have been taken
anyway absent the USERRA-protected status or
activity.

26
Burden of Proof, contd.

1002.33 Does the employee have to prove that
the employer discriminated against him or her in
order to be eligible for reemployment?
No. The employee is not required to prove that
the employer discriminated against him or her
because of the employees uniformed service in
order to be eligible for reemployment.

27
General Protections

1002.40 Does USERRA protect against
discrimination in initial hiring decisions?
Yes. The Acts definition of employer
includes a person, institution, organization, or
other entity that has denied initial employment
to an individual in violation of USERRAs
anti-discrimination provisions. An employer need
not actually employ an individual to be his or
her employer under the Act, if it has denied
initial employment on the basis of the
individuals membership, application for
membership, performance of service, application
for service, or obligation for service in the
uniformed services. Similarly, the employer would
be liable if it denied initial employment on the
basis of the individuals action taken to enforce
a protection afforded to any person under USERRA,
his or her testimony or statement in connection
with any USERRA proceeding, assistance or other
participation in a USERRA investigation, or the
exercise of any other right provided by the Act.
For example, if the individual has been denied
initial employment because of his or her
obligations as a member of the National Guard or
Reserves, the company or entity denying
employment is an employer for purposes of USERRA.
Similarly, if an entity withdraws an offer of
employment because the individual is called upon
to fulfill an obligation in the uniformed
services, the entity withdrawing the employment
offer is an employer for purposes of USERRA.

28
QUESTIONS?
29
5 Minute break
30
Other Coverage Provisions

1002.61 Does USERRA cover a member of the
Reserve Officers Training Corps?
Yes, under certain conditions. (a)
Membership in the Reserve Officers Training Corps
(ROTC) or the Junior ROTC is not service in the
uniformed services. However, some Reserve and
National Guard enlisted members use a college
ROTC program as a means of qualifying for
commissioned officer status. National Guard and
Reserve members in an ROTC program may at times,
while participating in that program, be receiving
active duty and inactive duty training service
credit with their unit. In these cases,
participating in ROTC training sessions is
considered service in the uniformed services,
and qualifies a person for protection under
USERRAs reemployment and anti-discrimination
provisions.

31
Other Coverage Provisions, contd.

(b) Typically, an individual in a College ROTC
program enters into an agreement with a
particular military service that obligates such
individual to either complete the ROTC program
and accept a commission or, in case he or she
does not successfully complete the ROTC program,
to serve as an enlisted member. Although an
individual does not qualify for reemployment
protection, except as specified in (a) above, he
or she is protected under USERRAs
anti-discrimination provisions because, as a
result of the agreement, he or she has applied to
become a member of the uniformed services and has
incurred an obligation to perform future service.

32
Discrimination/Retaliation Evidentiary Standard
Analysis

Comparative Analysis
Proximity in time between employees military or
protected activity and adverse employment action
Inconsistencies between proffered reason and
other actions of the employer
Employers expressed hostility towards members
protected by USERRA together with knowledge of
employees military or protected activity and
Disparate treatment of certain employees compared
to other employees with similar work records or
offenses.
Grosjean v. Firstenergy, 2007 WL 987326 (ND Ohio
2007)

33
Discrimination (Hiring/Promotion)Documented
Evidence

The employers written announcement, paper or
electronic
Applications and resumes (or other lists of
qualifications) of both the complainant and the
other applicants to the position
In some cases, the total number of applicants is
small, so it is easy to get all the applications
With a large employer, however, there may be
hundreds of applicants and only a few finalists.
In that case, ask only for the documents
respecting the finalists.
The employers selection criteria (e.g., type of
degree, of years of experience)
Materials from selecting officials
(a) interview notes
(b) ratings sheets
(c) any other documents reflecting evaluation
of the applicants both individually and with
respect to each other
Materials relating to Applicants
(a) Test results
(b) Performance evaluations (in promotion
cases)
(c) Recommendations and
(d) any other information used in evaluating
the applications

34
Discrimination (Termination/Demotion)Evidence

Information and records of treatment regarding
other employees who committed similar infractions
Records include (but are limited to) the
following performance evaluations, honors,
awards, thank you notes, reprimands, notes
regarding counseling, documents recording other
adverse actions
Information is a broader term and includes all
data, including that which is gathered orally
i.e., through interviews. Interviews are very
important. Some employers, especially small
ones, do not keep extensive written files.
However, interviews might reveal that every
employee has committed the offense in question
(e.g., coming in late) but no employee has been
reprimanded. Conversely, they might reveal that
all employees who committed that offense were
fired. Dont be afraid to press for information
and ask follow-up questions!
Remember Some employers do not have good
records. That is why interviews are important!