USERRA Lawyer

Who Is Eligible for Protection Under USERRA?

As you might imagine, USERRA covers all members of the Uniformed Services. Persons covered by USERRA include those who are members of, apply to become members of, perform, have performed, have applied to perform, or have an obligation to perform service in a uniformed service – 38 USC 4311 (a).

Specifically, it covers anyone serving in the Army, Navy, Marine Corps, Air Force, Space Force, and Coast Guard. Both active-duty individuals and reservists in these branches fall under USERRA, as do members of the National Guard. 

Other USERRA groups include: 

• Veterans with honorable service discharges;
• Anyone serving in the Commissioned Corps of the Public Health Service;
• Anyone in a group designated by the President during a crisis or wartime emergency; and
• Applicants and recruits in the Uniformed Services.

Although USERRA covers most people involved with the Armed Forces, there are a few eligibility requirements if anyone wishes to take advantage of USERRA’s reemployment guarantees. 

Specifically, these service members must:

• Inform their employers of their upcoming military service unless it’s impossible or unreasonable to do so;
• Serve in the uniformed services for a cumulative period not exceeding five years (with certain exceptions);
• Return to work or apply for reemployment in a timely manner after the conclusion of their service; and
• Receive an honorable (or equivalent) discharge from service.

In essence, USERRA serves as a safety net. It ensures individuals who commit to serving in the uniformed services in any capacity can do so without fear of reprisal or disadvantage in their civilian employment.

How to File a USERRA Complaint

Filing a USERRA complaint requires patience and precision. In contrast to other civil rights-related complaints, individuals who wish to file a USERRA complaint can follow one of several pathways.

One option is to file a complaint with the Department of Labor’s (DOL) Veterans Employment & Training Service (VETS) division. Another option is to file a complaint in federal court. You can even file a claim with the Merit Systems Protection Board (MSPB).

The MSPB has the authority under the military leave law, 38 USC 4324, to remedy the denial of military leave benefits, including improper military leave charge claims filed under USERRA. The Board can order an agency to correct the leave records of a reservist or member of the National Guard. – Pucilowski v. Department of Justice, 498 F.3d 1341 (Fed. Cir. 2007).

Regardless of the venue you choose to pursue your claim, much of the filing process is identical. 

• Record everything. Establishing an unassailable factual record is the first step to success. Write down any relevant interactions, and hold onto key documents or emails.
• Confirm you are eligible under USERRA. This step is fairly easy because of USERRA’s broad scope. Nonetheless, prepare your military service documents and honorable service discharge to establish your military service. 
• Get legal help. As the old saying goes, “forewarned is forearmed.” Consulting an attorney before filing your claim can give you vital advice on preparing and structuring your complaint. 
• File a DOL complaint. Submit a formal complaint with the VETS division. One of this group’s primary responsibilities is to investigate USERRA complaints, so they will assign an investigator to your complaint to determine whether your employer acted illegally.
• Alternative #1: File an MSPB Complaint. The MSPB aims to protect all federal employees from wrong personnel practices. Depending on the circumstances surrounding your complaint, filing an MSPB complaint may be one way to obtain a rapid resolution.
• Alternative #2: Contact the Office of Special Counsel (OSC). If VETS determines that something illegitimate occurred, they will attempt to resolve the dispute via mediation. If this method does not work, then you can file a lawsuit with the OSC.
• Alternative #3: File a complaint in federal court. Some victims of USERRA discrimination prefer to pursue a resolution in federal court rather than administrative forums. While federal court cases can take longer than their administrative sector counterparts, you can enjoy greater procedural protections. 

Unlike other causes of action, many forums can resolve USERRA violations. Understanding which forum best suits your case depends on certain tactical and factual considerations. Consulting a qualified USERRA attorney is the best way to determine which pathway to pursue for your case.

Applicable Legal Standards for USERRA Claims

Now that you have a general idea of how to file a USERRA complaint, let’s dive into some of the more technical legal standards. First, there’s the matter of establishing the MSPB’s jurisdiction over your claim (assuming you choose to file in the MSPB).

To establish MSPB jurisdiction over a USERRA discrimination appeal, you must make non-frivolous allegations that:

• You performed duty or has an obligation to perform duty in a uniformed service of the United States;
• The agency denied you initial employment, retention, promotion, or any benefit of employment; and
• The denial was due to the performance of duty or obligation to perform duty in the uniformed service.

Source: Mims v. Social Security Administration, 120 MSPR 213 (MSPB 2013); 5 CFR 1201.57 (a)(3) and 5 CFR 1201.57 (b)

Similarly, if you want to establish a retaliation claim under USERRA, you must make non-frivolous allegations that:

• You engaged in activity protected under 38 USC 4311 (b);
• The agency discriminated in employment or took an adverse employment action against you; and
• Your protected activity was a motivating factor in the agency’s action.

Sources: Kitlinski v. Department of Justice, 2023 MSPB 13 (MSPB 2023), citing 38 USC 4311 (b), (c)(2), Hayden v. Department of the Air Force, 812 F.3d 1351 (Fed. Cir. 2016)

The courts make clear that a discrimination claim under USERRA should be broadly and liberally construed in determining whether it is non-frivolous. Williams v. Department of the Treasury, 110 MSPR 191 (MSPB 2008). Many people believe that the discrimination against them has to be obvious to them to be able to succeed in their claim. This simply isn’t true.

Discriminatory motivation under USERRA may be reasonably inferred from a variety of factors, including proximity in time between your military activity and the adverse employment action; inconsistencies between the proffered reason and other actions of the employer; and disparate treatment of certain employees compared to other employees with similar work records or offenses. Sheehan v. Department of the Navy, 240 F.3d 1009 (Fed. Cir. 2001).

Discrimination is seldom open or notorious, and employers rarely concede an improper motivation for their employment actions. Rather, discrimination tends to be inferred from evidence of hostility or disparate treatment of certain employees compared to other employees with similar work records or offenses. Sharpe v. Department of Justice, 916 F.3d 1376 (Fed. Cir. 2019), citing Sheehan v. Department of the Navy, 240 F.3d 1009 (Fed. Cir. 2001); McMillan v. Department of Justice, 812 F.3d 1364 (Fed. Cir. 2016).

What Defenses Are There for USERRA Claims?

The legislative history of USERRA makes it clear that Congress has never imposed limitation periods on the adjudication of claims under the statute.

The only time-barred defense to claims under the statute is an equitable one if you failed to act on your claim in a timely manner. Garcia v. Department of State, 101 MSPR 172 (MSPB 2006).

There is no time limit for filing a USERRA appeal with the MSPB, but employees are encouraged to raise their complaints as soon as possible after the alleged. 5 CFR 1208.12.

In Summary: Uniformed Services Employment and Reemployment Rights Act of 1994

USERRA offers employment and benefits protections to members of the National Guard, Reserves, or those who serve in the uniformed services of the United States. USERRA applies to both public and private sector employers and guarantees reemployment rights for up to five years following an employee’s entry into a period of uniformed service. 

It prohibits discrimination on the basis of uniformed service with respect to initial employment, reemployment, retention in employment, promotion, or any other benefit of employment. It also clarifies the employee’s rights with regard to leave that is taken in connection with active duty service.

Federal employees who believe their USERRA rights have been violated by an agency or the Office of Personnel Management may file a complaint with the Department of Labor or file an appeal directly with the Merit Systems Protection Board. It is important to note that there is no statute of limitations on USERRA claims and claims may be made for service prior to its enactment in 1994.

Examples of USERRA Violations

USERRA is a complex law, so getting lost in the big picture is all too easy. Let’s look at two hypothetical USERRA violations to help ground the abstract concepts in hard facts.

Jamal’s Reemployment Conundrum

Jamal is a cybersecurity specialist with the Department of Defense (DoD) and a member of the Army National Guard. Recently, he informed his supervisor that he needed to attend a two-week annual National Guard training.

The supervisor agreed. Upon his return, Jamal discovered that his management had filled his old position with another employee. Jamal’s management offered him a different, lower-paying role instead. The department cited “organizational needs” for the reshuffle. 

Carlo’s Uphill Hiring Battle

After serving as an active duty infantryman in the Marine Corps, Carlos applied for a position at the Department of Transportation (DoT).

During his interview, he mentioned his plans to join the Marine Corps Reserves and his potential commitments related to that. Two weeks later, Carlos received a rejection notice from the DoT.

After doing some digging, he found out that his qualifications were superior to the other candidates. He also discovered from a DoT HR representative that one of the interview panelists said the department “didn’t want to deal with some reservist who is gone all the time.”

As you can see, engaging a lawyer can be a game-changer for your USERRA claim. Consequently, it’s vital you see an attorney right away. During your consultation with the attorney, you can discuss basic strategies and next steps. 

What are the Benefits of Hiring a USERRA Lawyer?

Hiring a USERRA attorney offers numerous advantages that elevate your claim’s prospects. 

Let’s delve into these advantages:

• Deciphering legal nuances. A USERRA lawyer possesses the expertise to break down the complexities of this specific legislation. By doing so, they help ensure you know your rights and entitlements so that you can plan your next moves.
• Evidence compilation and review. A skilled USERRA lawyer will guide you in fortifying your claim with specific documents and evidence. Their expertise ensures you present the most compelling case that touches on every necessary legal aspect.
• Overcoming procedural barriers. Navigating the USERRA complaint process can be daunting. A USERRA lawyer can assist you in choosing your forum and lodging your complaint.
• Employer negotiations. Parties frequently resolve claims without escalating to formal legal proceedings. With a lawyer by your side, you stand a much stronger chance of arriving at a mutually beneficial settlement.
• Litigation Assistance. Should your case warrant a court battle, your USERRA lawyer will be on the frontline. In that capacity, they will make arguments, present evidence, and work diligently to secure a positive result.

Given all of these benefits, the only remaining question revolves around picking the right USERRA attorney. Law firms vary immensely when it comes to specialization and quality. Furthermore, most firms have little to no experience with USERRA issues. Fortunately, the legal team at Pines Federal does.

We have decades of experience collectively fighting for veteran’s rights. Because of that, we have the tools necessary to maximize your chances of success. And on top of all that, we prioritize our clients. You’re not just a number to use. You’re family. 

If you feel that you have been the victim of discrimination, reprisal, or your Agency’s failure to provide benefits protected under USERRA, please contact Pines Federal, and we would be happy to fight for you on your case.

Call us at (832) 462-7655 or fill out our online form today to get started.