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USERRA Amendment: Protecting the Military or Targeting Employers?

 

Last month, President Obama signed into law an amendment to the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). This amendment, the “Veterans Opportunity to Work (VOW) to Hire Heroes Act,” allows USERRA to recognize claims of hostile work environment on account of an individual’s military status, making it easier for employees to sue their employer for discrimination based on their military status.userra

In addition to increasing educational opportunities, job counseling, and transition and placement assistance available to veterans, this bipartisan legislation creates the same standard for hostile environment claims on account of military status as that are required for Title VII and other employment discrimination claims. Consequently, employers will find it more difficult to end USERRA claims quickly—even where the employee has not suffered a tangible loss.

America’s military is the finest the world has ever known. The women and men of the U.S. armed forces are true heroes, and deserve recognition and respect for the sacrifices they’ve made for this country. So while this blog might not always agree with President Obama’s labor and economic policies, we’re behind the President’s recent decision to amend USERRA. However, as is so often the case with this Administration's policies, the devil’s in the details, and an important question is still to be answered: Will this new law be used to protect members of the U.S. military from anti-military bias? Or will it function as yet another tool to intimidate employers?

Bottom Line for Employers

Given this expansion of USERRA protections, employers should ensure that their EEO policies include “military and veteran status” and that all supervisory personnel are aware of USERRA’s new parameters. Additionally, companies should consider including language prohibiting harassment on the basis of military and/or veteran status in their policies against harassment in the workplace.

-Meredith Diette represents public and private employers before state and federal courts and administrative agencies on a variety of employment-related matters such as claims of discrimination, wrongful discharge, retaliation, sexual harassment, unemployment, and employee discipline.

Comments

Nothing in the new law "[makes] it easier for employees to sue their employer." The amendment clarifies a definitional term to correct erroneous caselaw at odds with Congressional intent. The evidentiary burdens on the parties remain the same. The view that an employee who suffers a hostile working environment has not suffered a tangible loss is at odds with state and federal labor law, and Supreme Court decisions. Last, the notion that the right to be free from harassment on the basis of one's military service obligations is tantamount to "yet another tool to intimidate employers" is such sloppy reasoning that it would surprise me if any intelligent employer would agree with you or worse seek out your legal services. A political blog is one thing, but as a labor and employment law blog entry, this is sorely disappointing.
Posted @ Thursday, December 08, 2011 8:20 AM by Nick L
The continued erosion of the “at-will” employment doctrine does intimidate employers who fear terminating or reprimanding subpar employees because of some as yet unknown or unidentified protected class. Frequently, unscrupulous plaintiff’s attorneys, or even dishonorable employees, will abuse protections, such as USERRA, to justify a termination or other adverse employment action when the genuine reason behind a termination, etc, is substandard performance or attendance issues. As an employment attorney, it’s my job to protect the interests of my clients, and that means being savvy enough to understand not every employee or plaintiff’s attorney is above abusing statutory protections for those serving in the U.S. military.  
 
Furthermore, I’d recommend reading the following cases, which demonstrate the extent to which federal courts have been reluctant to recognize hostile work environment claims under USERRA.  
 
o As the first 1st Circuit explained in Vega-Colon v. Wyeth Pharms., 625 F.3d 22, 32 (1st Cir.2010), “[n]either the Supreme Court nor any court of appeals has decided whether a hostile work environment claim is cognizable under USERRA.” 
o Carder v. Continental Airlines, No. 10-20105 (5th Cir. Mar. 22, 2011), airline pilots who were also members of the Reserves and National Guard, attempted to bring a class action claim against their employer, Continental. The employees alleged that Continental’s management “repeatedly chided and derided [them] for their military service through the use of discriminatory conduct and derogatory comments regarding their military service and military leave obligations.” Specifically, the employees claims that Continental’s management made such statements as “Continental is your big boss, the Guard is your little boss” and “you need to choose between [Continental] and the Navy.” The 5th Circuit dismissed their claim explained that USERRA did not authorize hostile work environment claims where the relevant employee did not suffer a tangible employment action. 
o Other courts have dismissed hostile work environment claims under USERRA on other grounds, avoiding the question of whether such a claim was cognizable under the statute. See, e.g., Dees v. Hyundai Motor Mfg. Alabama, LLC, No. 09-12107 (11th Cir. Feb. 26, 2010) (dismissed for lack of standing under USERRA); Rivera-Melendez v. Pfizer Pharamceutical, Inc., No. 10-1012 (U.S. D. Puerto Rico. Oct. 21, 2011) (dismissed because even if USERRA permitted claim of hostile work environment plaintiff proffered no evidence of harassing behavior by employer). 
 
Posted @ Tuesday, December 13, 2011 10:42 AM by Ryan O'Donnell
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