Jan 22

Saving Private Ryan’s Private Sector Job

In the Navy? USERRA protects you from discrimination when you return to the private sector.

In the Navy? USERRA protects you from discrimination when you return to the private sector.

From the Halls of Montezuma, to the…doors of the unemployment agency? Many employers don’t want an employee who will go on military leave for weeks, months, or even years at a time. Fortunately, the Uniformed Services Employment and Reemployment Rights Act (USERRA) prohibits an employer from firing a service member without cause for up to one year after he returns from military service. But that doesn’t mean an employer can discriminate against a service member when the special protection period ends. USERRA also prohibits anti-military discrimination long after a service member returns to civilian life.

I. Special Protection of Service Members and Veterans from Discharge Without Cause

A. How Long Is USERRA’s Special Protection Period?

USERRA requires a civilian employer to “promptly” reemploy a service member after he returns from “service in the uniformed services” if: (1) he gives his employer advance notice of such service (or military necessity or some other circumstance makes notice impossible or unreasonable); (2) the cumulative length of all absences for such service from his employer doesn’t exceed five years (or is exempt from the five-year rule); (3) he timely returns to work or applies for reemployment; and (4) he doesn’t separate from the military with a disqualifying discharge or under other than honorable conditions.1

But the right to reemployment wouldn’t mean much if an employer could fire a returning service member right after he reemploys him. For that reason, USERRA entitles a service member to protection from discharge without cause in many cases. The length of the special protection period depends on the length of his service. If his service lasts 31 to 180 consecutive days, his employer can’t fire him without cause for at least 180 days after he returns from his service.2 If, however, his service lasts at least 181 consecutive days, his employer can’t fire him without cause for at least one year after he returns from his service.3

B. When Is a Discharge for “Cause” Under USERRA?

In response to the question of whether an employer can discharge a service member during a special protection period, “because” isn’t an answer. But “cause” is an answer. The exact meaning of “cause,” however, eludes a simple explanation. The U.S. Department of Labor’s USERRA regulations are less than helpful: an employer can base a discharge for cause during the special protection period on either: (1) the service member’s “conduct”; or (2) other “legitimate, non-discriminatory reasons (i.e., adverse economic circumstances).4 In either case, the employer has the burden of proving that the discharge was for cause.5

In the case of a discharge for conduct, the employer must prove: (1) the discharge is a “reasonable” response to the service member’s conduct; and (2) the service member had “fair notice” (express or implied) that his conduct would constitute cause for discharge.6 The type of conduct that can support a for-cause discharge includes tardiness, missing conference calls, acting inappropriately in front of customers, and bugging co-workers.7 The type of conduct that will support a for-cause discharge doesn’t have to be illegal or immoral.8 Rather, it can include something as innocuous as a failure to relocate on time.9

II. General Protection of Service Members and Veterans from Discrimination

Just because the special protection period ends doesn’t mean that an employer now has a license to fire a service member. Under USERRA, an employer may not deny “initial employment, reemployment, retention in employment, promotion, or any benefit of employment” to an individual who “is a member of, performs, has performed, applies to perform, or has an obligation to perform service…”10 Even better, USERRA differs from other anti-discrimination laws in that it requires a plaintiff to prove only that military service was a motivating factor, rather than the sole motivating factor, in the employer’s decision.11

In any case under USERRA, a plaintiff can recover generous compensation. In an ordinary case, a plaintiff can recover lost benefits, back pay, and, if reinstatement isn’t viable, front pay.12 If, however, the employer “willfully” (i.e., knowingly or recklessly) terminates him before the special protection period ends or discriminates against him afterward, the plaintiff can recover liquidated damages in an amount equal to double his lost benefits and back pay.13 Moreover, a prevailing plaintiff, but not a prevailing employer, may recover attorney’s fees, expert witness fees, and other expenses and costs.14

  1. 38 U.S.C §4312(a). 

  2. Warren v. International Business Machines Corp., 358 F.Supp.2d 301 (S.D.N.Y. 2005). 

  3. Id

  4. 20 C.F.R. §1002.248. 

  5. Id

  6. 20 C.F.R. §1002.248(a). 

  7. Francis v. Booz, Allen & Hamilton, Inc., 452 F.3d 299 (4th Cir. 2006). 

  8. Rademacher v. HBE Corp., 645 F.3d 1005,1013 (8th Cir. 2011). 

  9. Moore v. Blockbuster, Inc., 2009 WL 904045 (D.N.J. March 31, 2009). 

  10. 38 U.S.C §4311(a). 

  11. Coffman v. Chugach Support Services, Inc., 411 F.3d 1231, 1238 (11th Cir. 2005). 

  12. See Graham v. Hall-McMillen Co., 925 F.Supp.437, 443-446 (N.D. Miss. 1996). 

  13. 38 U.S.C. §4323(d). 

  14. 5 C.F.R. §1201.202(a)(7). 

Ben Rothman, Esq.

Ben Rothman is a Los Angeles-based attorney practicing in the areas of personal injury, employment, and workers' compensation on a "no recovery, no fee" basis. Call him at (424) 465-2948 for a free, no-obligation consultation.