USERRA Provides Important Protections for Veterans

USERRA Provides Important Protections for Veterans

Happy Veterans Day! We thank veterans for their service.

Last year, we discussed the ways servicemembers are deprived of rights available to other employees by Feres v. United States 340 U.S. 135 (1950) and subsequent cases that prevent servicemembers from enforcing workplace protections, including federal antidiscrimination laws. We are disheartened that the president-elect denigrated veterans. In a legal and political environment that can be hostile to veterans’ interests, the Uniformed Services Employment and Reemployment Rights Act (USERRA) is an important tool for veterans. USERRA prohibits civilian employers from discriminating against members of the uniformed service in initial employment, reemployment, retention in employment, promotion, or any other benefit of employment because of the member’s military status. These anti-discrimination prohibitions and related regulations include a so-called “escalator principle” provision, which means that a servicemember who must take leave from her civilian employment for active duty does not miss out on career progress on the career trajectory she would otherwise enjoy. (20 C.F.R. § 1002.191.)

Before USERRA, other laws protected servicemembers who experienced discrimination after their service, such as the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, which was commonly referred to as the Veterans’ Reemployment Rights Act. (See, e.g., Huhmann v. Federal Express Corporation (9th Cir. 2017) 874 F.3d 1102, 1008 n.4, discussing statutory history.) Congress enacted USERRA in 1994 in part to encourage noncareer (for example, as a reservist or in the National Guard) service in the uniformed services “by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service,” and incorporated existing prohibitions against discrimination or retaliation based on military status.  (38 U.S.C. § 4801(a)(1)-(3).)

Over the last decade, the Ninth Circuit Court of Appeals has issued a few opinions that demonstrate the type of employment discrimination a servicemember might face, and how she may seek redress from the courts.

In Huhmann, mentioned above, the plaintiff was a commissioned officer in the U.S Air Force Reserve for 21 years. FedEx hired Huhmann to fly a Boeing 727, a “narrow body” type of aircraft. After Huhmann started, FedEx selected Huhmann for training so the plaintiff could serve on a “wide-body” aircraft that meant a higher pay grade at FedEx. Two weeks before the plaintiff’s wide-body aircraft training started, he was mobilized for active Air Force duty for more than three years of overseas deployment. (Huhmann, 874 F.3d at 1104-1105.)

While Huhmann was on Air Force active duty, his union entered a collective bargaining agreement (CBA) that provided for signing bonuses. The signing bonus for narrow-body pilots was less than half the signing bonus for wide-body pilots. (Id. at 1105.)

When Huhmann returned to FedEx after his deployment, he started wide-body aircraft training almost immediately and completed it in a little more than two months, in contrast to some pilots selected for the program who are unable to complete the training. Nonetheless, Huhmann received the lower narrow-body aircraft signing bonus under the CBA. Huhmann filed suit under USERRA, alleging that his lower bonus violated 38 U.S.C. 4311(a). Ninth Circuit law requires a USERRA plaintiff to show, by preponderance of the evidence, that her protected status was a substantial or motivating factor in the adverse employment action (here, the lower bonus); after that showing, the employer can avoid liability only by showing, as an affirmative defense, that the employer would have taken the same action without regard to the employee’s protected status. (Id.) At a bench trial, the district court found that if Huhmann’s wide-body pilot training had not been deferred due to his deployment, it was reasonably certain that Huhmann would have become a wide-body pilot before the date the CBA was signed, entitling him to the higher bonus. The district court awarded Huhmann the higher signing bonus, attorney’s fees, and litigation costs. (Id. at 1106.)

FedEx appealed, and the Ninth Circuit rejected each of FedEx’s arguments and affirmed. First, FedEx argued that the Railway Labor Act, which applies to FedEx as an air carrier, required Huhmann’s claim to be decided by an arbitrator because his claim was a “minor dispute” involving interpretation of the CBA within the meaning of the Railway Labor Act. The Ninth Circuit rejected this argument, because Huhmann’s right to progress in his career as if he had never deployed is awarded to him by USERRA, not the CBA, and did not require interpretation of the CBA. (Id. at 1007.) Next, FedEx argued that the district court did not apply the required burden-shifting test (first, the plaintiff must show that his or her military service was a substantial motivating factor to cause the adverse employment action; then, the employer can provide an affirmative defense.) FedEx argued that applying the escalator principle, and the test of whether there was a reasonable certainty Huhmann would have become a wide-body pilot by the signing of the CBA, was error because the doctrines first arose in cases interpreting USERRA’s pre-cursor litigation. (Id. at 1108.) Not so, held the Ninth Circuit: the district court properly applied those tests to determine whether the denial of a benefit (the higher bonus) was on account of Huhmann’s military service. (Id.) The burden was shifted—FedEx just failed to offer an affirmative defense. (Id.) The Ninth Circuit also rejected FedEx’s arguments that the district court erred in its factual determination as to the reasonable certainty test, and that the district court was required to determine whether the bonus at issue was seniority-based, as USERRA’s protections are limited as to certain non-seniority based benefits. (Id. at 1110-1111.)

Huhmann provides a framework for evaluating USERRA claims that the Ninth Circuit followed five years later, in Belaustegui v. International Longshore and Warehouse Union (2022) 36 F.4th 919. In that case, Belaustegui left his position as an entry-level longshore worker to enlist in the Air Force. (Belaustegui, 36 F.4th at 921.) After nine years of active duty, Belaustegui returned to his longshore worker positioned and requested to be promoted, under the CBA governing his employment, from an entry-level “Casual Worker”, who received only shifts after they were assigned to higher level designations, to a “Class B” worker. Class B status would afford Belaustegui assigned shifts as well as vacation pay, holiday pay, and other benefits. (Id.) The CBA at issue included provisions that expressly incorporated USERRA protections, and a means of calculating “an appropriate hours credit” for returning servicemembers so that they could be reinstated with the benefits they would have received if they had not left for active duty. (Id. at 926.) Belaustegui’s request was denied, and Belaustegui filed a complaint with his union and, absent a decision, a complaint in district court. (Id. at 922-923.) The district court found that Class B status was not a protected benefit of employment, nor a violation of the escalator principle. (Id. at 925.) Belaustegui appealed and the Ninth Circuit reversed. The Ninth Circuit held that section 4311(a) of USERRA and the related section 4303(2)’s “expansive definition of ‘benefit of employment’ confirm that Class B status is a ‘benefit of employment.’ And Class B status is indisputably available to non-servicemembers, so even if we were to accept defendants’ blanket argument that a benefit must always be available to non-servicemembers to be protected by USERRA, Belaustegui could (and does) advance a § 4311 claim premised on the denial of Class B status.” (Id. at 926.) Further, the court found that the hours credit policy was simply a means of calculating a returning servicemember’s escalator position, which was also protected under section 4311. (Id. at 927.) The court vacated and remanded for the district court to consider other defenses raised by the defendants.

Taken together, Huhmann and Belaustegui demonstrate that veterans who face discrimination—or any service-related setbacks—in civilian employment have remedies. No one who serves should be punished for it when they return to civilian life.

If you have questions about how USERRA or other anti-discrimination law may apply to your employer’s wrongful actions, please contact Bryan Schwartz Law, P.C.