Employers are often hostile to employees who must leave their job for extended periods of time, sometimes even terminating employees while they are on leave or upon their return to work. Such conduct, if permissible, would significantly impact military personnel, as members of the Armed Forces—particularly members of the Active Reserve and of the National Guard— are frequently required to leave their civilian jobs for service. To assure service members that their jobs will be secure, in 1994, Congress enacted the Uniformed Services Employment and Reemployment Rights Act (USERRA). The USERRA prohibits discrimination against service members in all employment decisions and requires employers to reemploy service members without losing their seniority.
As Elaine Chao, former Secretary of Labor explains:
Our military personnel can serve secure in the knowledge that their civilian jobs will be waiting for them when they conclude their active service… It is imperative that we as a nation do all we can to make sure that the men and women whom we are asking today to stand in harm’s way—whether in the active armed forces or the Guard or Reserves—have every opportunity to provide for themselves and their families when they enter or return to the civilian labor force.
Covered individuals under the USERRA include members of the Active Reserve of the Armed Services, Army National Guard, and Air National Guard and the Commissioned Corporation of Public Health Services. The court uses a two-pronged test for USERRA discrimination cases. The first part of the test requires an employee to make a showing that her military service was a motivating factor in the termination. The second part of the test requires the employer to prove that the employee’s termination would have occurred despite military service.
The two-pronged test is different from and arguably, more difficult for employers than the commonly used three-pronged McDonnell Douglas test used in other types of discrimination cases. In the McDonnell Douglas test, an employee must show that there is an inference of discrimination. Then, the employer must show a legitimate, nondiscriminatory reason for taking the adverse employment action against the employee. If the employer can do that, then the burden shifts back to the employee, who must show that the employer’s stated reason was pretext for discrimination.
Under the USERRA test, however, the employer has the final burden to show that its stated reason for termination was not pretext and the termination would have occurred despite the employee’s military status.
In addition, employers may only deny otherwise qualified individuals re-employment in three situations: if the employment opportunity has changed to make reemployment impossible; if the employee is no longer qualified for the position; if the position is a brief non-recurrent position where the position was not expected to continue permanently.
If you have been discriminated against for your military service, please contact The Harman Firm, LLP.