Do you have employees returning from military service? If so, you need to be aware that the U.S. Department of Justice (DOJ) appears to be dramatically stepping up government enforcement of the Uniformed Services Employment and Reemployment Rights Act (USERRA).
So far in 2009, the DOJ has filed 15 lawsuits on behalf of returning soldiers who have had difficulties getting their old jobs and opportunities back. Six of those complaints were filed in May alone. That pace greatly exceeds the seven complaints filed in 2007 and eleven in 2008. These new lawsuits have been filed nationwide – from Virginia to California.
Failing to promptly re-employ returning servicemen and women who suffered injuries appears to be the focus of the new enforcement actions. For example:
- On May 5, the DOJ brought suit against the California Department of Corrections and Rehabilitation (CDCR) alleging that it failed to promptly re-employ U.S. Air Force reservist Danny Felix. The complaint alleges that Felix did not get his old job back as a medical technical assistant because of his service-related back injury, and that the alternative positions that were offered required longer commutes and paid less.
The complaint also alleged that a suitable job was not offered until nine months after Felix’s honorable discharge, and only after he told the employer that he had found a job with another employer.
- On May 26, the DOJ brought suit against the County of Fresno, California on behalf of Porotesano Faapouli, a Navy reservist who was seriously injured during a military training exercise. After several surgeries and an extensive recuperation period, Faapouli sought re-employment subject to his physical limitations. The complaint alleges that the County did not re-employ him, and instead, required Faapouli to take an unpaid leave of absence for several weeks until it concluded how his limitations could be accommodated.
After the unpaid leave of absence, the County allegedly offered Faapouli an entry-level position that paid $10 per hour less than the supervisory position he had held before his on-duty injury.
In other complaints, the DOJ appears focused on employers’ failure to afford deploying service members the opportunities for advancement that are afforded to other workers. For example:
- On May 26, the DOJ brought suit against the Newark Public Schools (NPS) alleging that it failed to honor its offer of a full-time teacher position that was made to George Lawton before Lawton was called to active duty with the Navy Reserve. The complaint also alleges that the NPS purged Lawton’s file from the list of substitute teachers, and required him to submit a new substitute-teacher application upon his return from service.
- On April 30, the DOJ filed a complaint on behalf of Emelio Pennes against the New York City Department of Corrections (NYDOC) alleging that Pennes was denied a promotion because of his service in the Army Reserve. Before Pennes was activated to serve in Iraq, he applied for a promotion. Due to his deployment schedule, Pennes could not attend an interview for the promotion, and the NYDOC refused to reschedule the interview for a time when Pennes would be at home on leave. Although Pennes was ranked first among the candidates, he claims that he was not offered the job because NYDOC could not schedule the interview around his military obligations.
USERRA is designed to ensure that service members (1) are not disadvantaged in their civilian careers because of their service; (2) are promptly reemployed in their civilian jobs upon their return from duty; and (3) are not discriminated against in employment based on past, present, or future military service. Violations carry heavy penalties.
For a long time, the Civil Rights Division for the DOJ has said that it has given a high priority to the enforcement of USERRA. But this recent activity indicates that after years of relying primarily on private lawsuits, the DOJ has a reinvigorated focus on enforcement of service members’ rights. If you have employees who are returning from military service or have questions regarding how an employee’s reservist activities impact human resources decisions, it is a good idea to stay out of the DOJ’s targets by seeking advice to ensure that you are staying on the right side of the law.