Managers Beware: Individual Liability Confirmed Under USERRA

The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301–4335, prohibits discrimination against employees and potential employees based on their military service and imposes certain obligations on employers with respect to employees returning to their civilian workplace after a period of service in the U.S. military.

There are some significant differences between USERRA and other employment law statues.  Here are five:

1. Individual Liability: As recently confirmed by a federal district court, those who violate USERRA may face individual liability even if they took the actions at issue in their official capacity.  In Bello v. Vill. of Skokie, No. 14 C 1718, 2015 U.S. Dist. LEXIS 173354 (N.D. Ill. Dec. 31, 2015), a police officer who also was a staff sergeant in the United States Marine Corps Reserve sued his employer, the Village of Skokie, Illinois, as well as several supervisors in their individual capacities, for violations of USERRA.  The court expressly rejected the employer’s argument that the police chief, deputy police chief, and the Village’s personnel director could not be personally liable under USERRA and held:"If the individual defendants are held liable for violating USERRA, the Court may enjoin them from implementing a discriminatory policy in the future, and it may require them to compensate Bello for the monetary damages he incurred."

2. No Minimum Employer Size: USERRA applies to all public and private employers, irrespective of size.  In other words, “an employer with only one employee is covered….” 20 C.F.R. § 1002.34(a).

3. No Statute Of Limitations: USERRA has no statute of limitations. See 38 U.S.C. § 4327(b); 20 C.F.R. § 1002.311.  In one recent decision, the court allowed the plaintiff to proceed with alleged USERRA violations that occurred six (6) and eighteen (18) years prior to the filing of suit. See Mock v. City of Rome, 851 F. Supp. 2d 428, 436 (N.D.N.Y. 2012).

4. “For Cause” Discharge Standard: USERRA expressly creates a “for cause” standard of discharge for veterans who return to work after a month or more of military service.  If a veteran’s service was between thirty (30) and one-hundred and eighty (180) days, he or she may not be discharged except for cause for six (6) months following his or her return to work.  Veterans returning from more than one-hundred and eighty (180) days of service are afforded protection from discharge for a full year.  See 38 U.S.C. § 4316(c)(1) and (2); 20 C.F.R. § 1002.247(a) and (b).  To meet its burden of showing cause, an employer must produce evidence demonstrating, not only that it was reasonable to discharge the employee for the conduct at issue, but that the employee had notice that the conduct would constitute cause for discharge.  See 20 C.F.R. § 1002.248(a).

5. Possible Entitlement to Promotion Upon Return to Work: Generally, a returning veteran must be placed into the position that he or she would have attained with reasonable certainty if not for his or her military service. See 20 C.F.R. § 1002.191.  This might require a promotion.

USERRA’s applicability and protections go well beyond seemingly similar employment law statutes, such as Title VII, the Family and Medical Leave Act (FMLA), and the Americans with Disabilities Act (ADA).  Employers need to make sure that Human Resources and managers understand the broad applicability of the statute and the full range of obligations with regard to veterans.  In some cases, compliance with the complexities of the statute may require advice of legal counsel.