USERRA, a federal law that protects the jobs of members of the uniformed services, has long been considered a dangerous trap for the unwary employer.
A jury recently awarded nearly $1 million in damages to an Oregon National Guardsman discharged after seeking outside assistance to get his job back, based largely upon the timing of the employer’s discharge decision.
The action was brought under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which was enacted to protect the jobs of reservists, National Guard members and other members of the uniformed services.
The law codifies a series of statutes dating back to WWII, all of which were underpinned by the notion that our returning Veterans are entitled to reemployment rights and anti-discrimination protection upon the fulfillment of their military commitments.
USERRA has long been considered a dangerous trap for the unwary employer, as it is one of the few statutes on the books providing for a built-in presumption in favor of the plaintiff. In the years since its passage, numerous employers have paid a steep price for violating its mandates, particularly with regard to those back end violations” that occur at the point in which returning service members seek a return to their “escalator positions.
Ironically, the jury in this case found Target was within its rights to demote the plaintiff, James Patton, on the basis it did so for job-related reasons pertaining to his performance.
The problem occurred in the aftermath, when Patton enlisted the support of the National Guard in an effort to secure reinstatement to his former position. Target subsequently discharged Patton for insubordination, and the jury concluded that he was illegally fired only after he elicited outside assistance to win his job back.
Patton was initially hired back in 2000 as part of the “”Target Executive Team.”” He alleged during the trial that he consistently received favorable evaluations, and that he routinely earned merit bonuses throughout his tenure at the company’s distribution center.
A year after his hire, Patton enlisted in the Army National Guard. The judge allowed Patton to present evidence suggesting his enlistment was greeted with hostility and warnings it could adversely affect his career.
In 2003, Patton was called to a two-week tour of active duty. Upon his return, he was demoted. In response, Patton e-mailed co-workers to inform them. He then went to the National Guard in an effort to obtain reinstatement.
Although the National Guard subsequently intervened, the company declined to reinstate Patton. He was terminated on the basis his e-mails constituted a violation of company policy.
At trial, Target argued that three months prior to his military service, Patton received a negative performance evaluation, and that its demotion was made before the tour of duty. On that basis, the company was ultimately exonerated on the demotion allegations.
But it was not so fortunate with regard to the termination allegations. The company denied firing Patton on the basis of his seeking intervention by the National Guard, arguing instead that his e-mails constituted an independent act of insubordination. The jury was not persuaded, slapping Target with a punitive damage award close to seven figures, more than 10 times the amount of Patton’s actual damages.
What It Means To You
The upshot of this case is clear. Emotions often run high with juries in cases such as these, as USERRA plaintiffs remain as sympathetic as those in any body of employment law.
The jury was clearly troubled by the timing of its decision, occurring on the heels of Patton’s attempt to enlist the support of an outside group on his behalf. Although not formally stated as a retaliation claim, the jury clearly viewed Target’s actions as retaliatory in this case.
Before terminating or otherwise taking adverse action on the heels of such activity, smart employers will review facts carefully, examine relevant internal precedent, and seek assistance of outside counsel, particularly in cases where USERRA rights are potentially implicated.
Steven M. Bernstein is with the law firm of Fisher & Phillips LLP. For more information contact the author at 404-231-1400 or firstname.lastname@example.org.