The Liability Risks Associated With USERRA And Return To Work After Duty

A New York City medical center reached a settlement agreement in a discrimination lawsuit filed by a former pharmacist who alleged the center terminated him because of his military service.

A little over a month after returning to the hospital after a tour of duty, the employer terminated the lieutenant colonel, informing him that they were eliminating his position to save money. However, the plaintiff asserts in the lawsuit that the employer gave raises to two employees who took on some of his duties, and paid overtime to others to complete his other duties. The plaintiff also alleged the employer hired new employees in the pharmacy department and even advertised for his position prior to his termination.

As part of the settlement, the employer will pay the plaintiff $195,000 for lost wages and other damages, as well as provide additional training to managers and human resource personnel on the rights of service members. Anna Quinn "Brooklyn Hospital To Pay $200K In Employment Discrimination Case" (May 04, 2021).

Commentary and Checklist

Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), it is illegal for employers to discriminate or retaliate against employees or applicants because of past, current, or future military obligations. Nearly every employer, regardless of size, must comply with the provisions in the law.

The hospital’s reasons for terminating the plaintiff in the above case can be legitimate, but the timing of the termination, along with the department’s subsequent hiring actions, exposed the employer to the discrimination claim.

Employers can avoid discrimination claims by establishing a policy regarding military leave that is compliant with the USERRA and related state laws. Also, employers should regularly train managers and supervisors on the policy and provide guidance on protecting employees from retaliation or harassment because of their service obligations.

The following are some key provisions of the USERRA to help you establish a compliant policy:

  • Employers must provide employees with notice of the rights, benefits, and obligations under the USERRA.
  • An employee returning to work from military leave must retain the seniority-based rights and benefits he or she had on the date their military service began.
  • A returning employee must also be given any seniority-based benefits the employee would have attained had they remained in continuous employment.
  • Military personnel must be re-employed in the position, status, seniority, and rate of pay he or she ordinarily would have attained with reasonable certainty if not for the military absence.
  • With regard to pension plans, military service must be considered service with an employer for retirement vesting and benefit accrual purposes.
  • Employers must provide reasonable accommodations to employees returning from military service with a disability.
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