Uniformed Services Employment Reemployment Rights Act (USERRA) Discrimination 38 U.S.C. 4311(a). Stanley K. Williams Director, Veterans’ Employment and Training District of Columbia

Format Authority Definitions of Veteran Eligibility, Employers, Discrimination OSC PPPs Regulations Evidentiary Analysis/Review

VETS’ Statutory Authority  38 U.S.C. § 4102A : The Secretary of Labor, acting through the Veterans’ Employment and Training Service (VETS) is charged with administering the USERRA statute. 38 U.S.C. §§ 4321, 4322, and 4331, VETS shall assist any person with respect to employment and reemployment rights and benefits, will conduct investigations of alleged violations in both Federal and non-Federal sectors, and may promulgate regulations implementing the provisions of the statute with respect to States, local governments and private employers. 38 U.S.C. § 4333, The Secretary, the Secretary of Defense, and the Secretary of Veterans Affairs shall take such actions as such Secretaries determine are appropriate to inform persons entitled to rights and benefits under this chapter and employers of the rights, benefits, and obligations of such persons and such employers under this chapter.

Discrimination Defined Under USERRA Generally means any adverse action taken by an employer based upon an employee’s military status or obligations No employer may deny a person initial employment, reemployment, retention in employment, promotion, or any benefit of employment based on the person’s membership, application for membership, performance of service, application to perform service, or obligation for service in the uniformed services. 38 U.S.C. 4311(a)

Discrimination Under USERRA USERRA prohibits an employer from engaging in acts of discrimination against past and present members of the uniformed services, as well as applicants to the uniformed services. 38 U.S.C. 4311(a). The anti-discrimination prohibition applies to both “employers” and “potential employers.”

Who is Covered? Prospective members of the U.S. armed services; Current members of the U.S. armed services; Past members of the U.S. armed services (veterans); Reserve components (Reserve, National Guard); and National Disaster Medical Service (NDMS) personnel

Prohibited Personnel Practices (PPPs) Office of Special Counsel has jurisdiction over PPPs. Twelve prohibited personnel practices, including reprisal for whistleblowing, are defined by law at § 2302(b) of title 5 of the United States Code (U.S.C.). A personnel action (such as an appointment, promotion, reassignment, or suspension) may need to be involved for a prohibited personnel practice to occur. Generally stated, § 2302(b) provides that a federal employee authorized to take, direct others to take, recommend or approve any personnel action may not:§ 2302(b) of title 5 (1) discriminate against an employee or applicant based on race, color, religion, sex, national origin, age, handicapping condition, marital status, or political affiliation VETS advises all claimants (Federal) with potential PPP issues that they may file a complaint with OSC VETS advises all claimants (Federal) with potential PPP issues that they may file a complaint with OSC

USERRA Final Regulations 20 C.F.R. Part 1002, effective January 18, 2006 Written in “plain-English” in a question-and-answer format Covers all aspects of USERRA as it relates to private employers and state and local governments Covers topics that VETS determined are important to employers and protected persons based on over ten years of responding to requests for information

USERRA Complaint Ratio Global War on Terrorism Complaints: Demobilized 1:96 Complaints: Demobilized 1: 54 Desert Storm No. of cases

Hypothetical not addressed Each individual case involving an issue under USERRA must be decided based on the specific facts of that case, with all the attendant and potentially influential details, together with the appropriate and applicable legal standards.

Unique questions during an interview We conclude that it is not unlawful in itself for a prospective employer to ask an applicant about military service or obligations.... in many instances a prospective employee’s military experience may enhance his or her potential value to the employer.... if information elicited in response to such questions forms the basis of the employer’s decision not to hire the applicant, or to take other adverse action against the person once hired, the inquiries may constitute evidence of unlawful discrimination.

“Employer” Defined In comparison to the ADA, the ADEA, and Title VII of the Civil Rights Act, USERRA’s definition of ‘‘employer’’ is unique. USERRA imposes liability for violations upon ‘‘any person * * * [who] * * * has control over employment opportunities’’ including ‘‘a person * * * to whom the employer has delegated the performance of employment- related responsibilities.’’ 38 U.S.C. 4303(4)(A)(i)

QUESTIONS?

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Department’s Intent (Preamble) “Proposed sections , and implement the protections of section 4311(a) and (b). Proposed section makes clear that the prohibition on discrimination applies to any employment position, regardless of its duration, including a position of employment that is for a brief, nonrecurrent period, and for which there is no reasonable expectation that the employment position will continue indefinitely or for a significant period.” 70 Fed. Reg (December 19, 2005).

Examples... A life guard at a swimming pool or a football coach are temporary, seasonal positions, and such positions enjoy both the anti-discrimination/anti-retaliation and the reemployment protections afforded under USERRA. 38 U.S.C. 4311(d) and 4312(d)(1)(C)

Examples, cont’d. An employment contract that covers a onetime- only, three-month-long position. Such brief, non-recurrent positions enjoy the protections afforded by USERRA’s anti- discrimination/antiretaliation provisions, but are not protected by the statute’s reemployment provisions. 38 U.S.C. 4312(d)(1)(C)

Congressional Intent (Evidence) Congress intended that the evidentiary scheme set forth by the United States Supreme Court in NLRB v. Transportation Management Corp., 462 U.S. 393, 401 (1983), apply to the analysis of violations under USERRA

Congressional Intent, Cont’d. Under this structure, in order to establish a case of employer discrimination, the person’s membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services must be a ‘‘motivating factor’’ in the employer’s actions or conduct. 38 U.S.C. 4311(c)(1). The initial burden of proving discrimination or retaliation rests with the person alleging discrimination (the claimant). A person alleging discrimination under USERRA must first establish that his or her protected activities or status as a past, present or future service member was a motivating factor in the adverse employment action

Establishing a Prima-Facie Claim The claimant alleging discrimination must prove the elements of a violation—i.e., membership in a protected class (such as past, present or future affiliation with the uniformed services); an adverse employment action by the employer or prospective employer; and a causal relationship between the claimant’s protected status and the adverse employment action (the ‘‘motivating factor’’). To meet this burden, a claimant need not show that his or her protected activities or status was the sole cause of the employment action; the person’s activities or status need be only one of the factors that ‘‘a truthful employer would list if asked for the reasons for its decision.’’ ‘‘Military status is a motivating factor if the employer relied on, took into account, considered, or conditioned its decision on that consideration.’’

Prima-facie Claim, cont’d. The employee is not required to provide direct proof of employer animus at this stage of the proceeding; intent to discriminate or retaliate may be established through circumstantial evidence. The Department notes that good faith contacts with the military to express legitimate concerns about timing, frequency, and duration of an employee’s military service do not evidence a discriminatory motive. USERRA prohibits the denial of any ‘‘benefit of employment’’ on the basis of military service obligations, see section , and it bears emphasis in response to this inquiry that USERRA includes an employee’s ‘‘opportunity to select work hours’’ as a ‘‘benefit of employment,’’ See 38 U.S.C. 4303(2); 20 C.F.R (b). Where a neutral employment policy provides that a promotional exam shall only be administered on a particular date to all employees, it may constitute discrimination to refuse to allow veterans away on leave on the date in question to take a make-up exam upon their return from service.’’

Regulatory Provisions What status or activity is protected from employer discrimination by USERRA? An employer must not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to an individual on the basis of his or her membership, application for membership, performance of service, application for employment What activity is protected from employer retaliation by USERRA? An employer must not retaliate against an individual by taking any adverse employment action against him or her because the individual has taken an action to enforce a protection afforded any person under USERRA; testified or otherwise made a statement in or in connection with a proceeding under USERRA; assisted or participated in a USERRA investigation: or, exercised a right provided for by USERRA Does USERRA protect an individual who does not actually perform service in the uniformed services? Yes. Employers are prohibited from taking actions against an individual for any of the activities protected by the Act, whether or not he or she has performed service in the uniformed services.

Regulatory Example Do the Act’s prohibitions against discrimination and retaliation apply to all employment positions? The prohibitions against discrimination and retaliation apply to all covered employers (including hiring halls and potential employers, see sections and.38) and employment positions, including those that are for a brief, nonrecurrent period, and for which there is no reasonable expectation that the employment position will continue indefinitely or for a significant period. However, USERRA’s reemployment rights and benefits do not apply to such brief, nonrecurrent positions of employment.

Regulatory Requirements (burden of proof) Who has the burden of proving discrimination or retaliation in violation of USERRA? The individual has the burden of proving that a status or activity protected by USERRA was one of the reasons that the employer took action against him or her, in order to establish that the action was discrimination or retaliation in violation of USERRA. If the individual succeeds in proving that the status or activity protected by USERRA was one of the reasons the employer took action against him or her, the employer has the burden to prove the affirmative defense that it would have taken the action anyway.

Elements of Burden of Proof What must the individual show to carry the burden of proving that the employer discriminated or retaliated against him or her? (a) In order to prove that the employer discriminated or retaliated against the individual, he or she must first show that the employer’s action was motivated by one or more of the following: (1) Membership or application for membership in a uniformed service; (2) Performance of service, application for service, or obligation for service in a uniformed service; (3) Action taken to enforce a protection afforded any person under USERRA; (4) Testimony or statement made in or in connection with a USERRA proceeding; (5) Assistance or participation in a USERRA investigation; or, (6) Exercise of a right provided for by USERRA. (b) If the individual proves that the employer’s action was based on one of the prohibited motives listed in paragraph (a) of this section, the employer has the burden to prove the affirmative defense that the action would have been taken anyway absent the USERRA-protected status or activity.

Burden of Proof, cont’d Does the employee have to prove that the employer discriminated against him or her in order to be eligible for reemployment? No. The employee is not required to prove that the employer discriminated against him or her because of the employee’s uniformed service in order to be eligible for reemployment.

General Protections Does USERRA protect against discrimination in initial hiring decisions? Yes. The Act’s definition of employer includes a person, institution, organization, or other entity that has denied initial employment to an individual in violation of USERRA’s anti-discrimination provisions. An employer need not actually employ an individual to be his or her ‘‘employer’’ under the Act, if it has denied initial employment on the basis of the individual’s membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services. Similarly, the employer would be liable if it denied initial employment on the basis of the individual’s action taken to enforce a protection afforded to any person under USERRA, his or her testimony or statement in connection with any USERRA proceeding, assistance or other participation in a USERRA investigation, or the exercise of any other right provided by the Act. For example, if the individual has been denied initial employment because of his or her obligations as a member of the National Guard or Reserves, the company or entity denying employment is an employer for purposes of USERRA. Similarly, if an entity withdraws an offer of employment because the individual is called upon to fulfill an obligation in the uniformed services, the entity withdrawing the employment offer is an employer for purposes of USERRA.

QUESTIONS?

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Other Coverage Provisions Does USERRA cover a member of the Reserve Officers Training Corps? Yes, under certain conditions. (a) Membership in the Reserve Officers Training Corps (ROTC) or the Junior ROTC is not ‘‘service in the uniformed services.’’ However, some Reserve and National Guard enlisted members use a college ROTC program as a means of qualifying for commissioned officer status. National Guard and Reserve members in an ROTC program may at times, while participating in that program, be receiving active duty and inactive duty training service credit with their unit. In these cases, participating in ROTC training sessions is considered ‘‘service in the uniformed services,’’ and qualifies a person for protection under USERRA’s reemployment and anti-discrimination provisions.

Other Coverage Provisions, cont’d. (b) Typically, an individual in a College ROTC program enters into an agreement with a particular military service that obligates such individual to either complete the ROTC program and accept a commission or, in case he or she does not successfully complete the ROTC program, to serve as an enlisted member. Although an individual does not qualify for reemployment protection, except as specified in (a) above, he or she is protected under USERRA’s anti-discrimination provisions because, as a result of the agreement, he or she has applied to become a member of the uniformed services and has incurred an obligation to perform future service.

Discrimination/Retaliation Evidentiary Standard Analysis Comparative Analysis 1. Proximity in time between employee’s military or protected activity and adverse employment action; 2. Inconsistencies between proffered reason and other actions of the employer; 3. Employer’s expressed hostility towards members protected by USERRA together with knowledge of employee’s military or protected activity; and 4. Disparate treatment of certain employees compared to other employees with similar work records or offenses. Grosjean v. Firstenergy, 2007 WL (ND Ohio 2007)

Discrimination (Hiring/Promotion) Documented Evidence The employer’s written announcement, paper or electronic Applications and resumes (or other lists of qualifications) of both the complainant and the other applicants to the position; In some cases, the total number of applicants is small, so it is easy to get all the applications; With a large employer, however, there may be hundreds of applicants and only a few finalists. In that case, ask only for the documents respecting the finalists. The employer’s selection criteria (e.g., type of degree, # of years of experience); Materials from selecting officials: (a) interview notes (b) ratings sheets (c) any other documents reflecting evaluation of the applicants both individually and with respect to each other; Materials relating to Applicants: (a) Test results (b) Performance evaluations (in promotion cases) (c) Recommendations; and (d) any other information used in evaluating the applications

Discrimination (Termination/Demotion) Evidence Information and records of treatment regarding other employees who committed similar infractions Records include (but are limited to) the following: performance evaluations, honors, awards, thank you notes, reprimands, notes regarding counseling, documents recording other adverse actions; Information is a broader term and includes all data, including that which is gathered orally – i.e., through interviews. Interviews are very important. Some employers, especially small ones, do not keep extensive written files. However, interviews might reveal that every employee has committed the offense in question (e.g., coming in late) but no employee has been reprimanded. Conversely, they might reveal that all employees who committed that offense were fired. Don’t be afraid to press for information and ask follow-up questions! Remember: Some employers do not have good records. That is why interviews are important!

USERRA Contact Information Robert M. Wilson Chief, Investigation and Compliance Division Wm. Kenan Torrans, Esq. Chief Senior Investigator, USERRA Program Manager Marcus C Bradshaw Senior Investigator Stanley K. Williams Director, Veterans’ Employment and Training District of Columbia