by Bill Ruhling
September 11, 2016, marks 15 years since the attacks on the United States that propelled the country into a war on terror that we continue to wage. It also has brought to the forefront the sacrifices made by our men and women in uniform. The upcoming anniversary of those events serves as a reminder to employers of the need to review their policies to ensure compliance with the Uniformed Services Employment and Reemployment Rights Act (USERRA). 
What’s USERRA?
Enacted in 1994, USERRA provides enhanced leave rights and employment protections for service members upon completion of their uniformed service. In addition, the law protects those serving in uniform from discrimination on the basis of their present or future membership in the uniformed services with respect to hiring, promotion, and retention. Persons protected by USERRA include those in the active and reserve components of the armed forces as well as the Army and Air National Guard, the Commissioned Corps of the Public Health Service, and any other category of persons designated by the president in time of war or national emergency.
USERRA covers virtually all employees, both fulland part-time. Only individuals who are independent contractors or self-employed are exempted. The law applies to all employers regardless of size. Importantly, as a remedial statute, USERRA is broadly interpreted and applied.
Veterans’ reemployment rights
When one of your employees receives word that she must leave your employ to serve in the armed forces, she must provide you with notice of the intended departure. The notice automatically entitles the employee to military leave for the period of uniformed service.
USERRA establishes a cumulative five-year limit on the amount of military leave an employee may take before reemployment rights expire. Statutory exceptions to that limit include:
- An initial period of obligated service lasting more than five years;
- A period when the employee is unable to obtain release from service; and
- The time during which an employee is hospitalized for or convalescing from an illness or injury incurred in or aggravated by the uniformed service (up to an additional two years). For purposes of the five-year limit, weekend drills, annual training, involuntary active duty extensions, and recalls due to a war or national emergency aren’t counted.
Upon completion of uniformed service with either an honorable or general condition discharge, the employee is entitled to be reemployed in the job she would have attained at the same seniority, status, and pay she would have received but for the military service. The employee also is entitled to reasonable training efforts to refresh or upgrade her skills to enable her to fulfill the duties of the position. Should the employee become disabled while serving or if a preexisting disability is aggravated by her service, you must make reasonable efforts to accommodate the disability. Once the veteran returns to work, she is protected from discharge, other than for cause, for up to one year, depending on the length of the absence.
Discrimination protections
USERRA further prohibits you from denying “initial employment, reemployment, retention in employment, promotion, or any benefit of employment” if the person’s membership in the uniformed service is a “motivating factor” in any adverse employment decision or action, unless you “can prove that the action would have been taken in the absence of such membership.” The U.S. 4th Circuit Court of Appeals has said that a “claimant need not show that [military service] was the sole cause of the employment action, but rather that it is one of the factors that a truthful employer would list if asked for the reasons for its decision.” Bunting v. Town of Ocean City, 409 F. App’x 693, 695-96 (4th Cir., 2011). Another circuit court has said that discriminatory intent may be inferred from a number of factors, such as:
Proximity in time between the employee’s military activity and the adverse employment action, inconsistencies between the proffered reason and other actions of the employer, an employer’s expressed hostility towards members protected by the statute together with knowledge of the employee’s military activity, and disparate treatment of certain employees compared to other employees with similar work records or offenses. Sheehan v. Dep’t of the Navy, 240 F.3d 1009, 1014 (Fed. Cir., 2001).
Washington’s USERRA claim
Recently, a federal district court applied these standards in addressing the showing an employee must make to establish a case of discrimination under USERRA. In Washington v. Coastal Internat’l Security, Civil No. DKC 14-0331 (D. Md., July 16, 2015), a member of the Navy Reserve, George Washington, contended that he was terminated by Coastal because his service created a “major problem for management” in scheduling his work shifts.
The court dismissed Washington’s USERRA claim, however, citing a number of problems with his attempt to characterize his employment termination as service-related discrimination. First, the court considered the fact that a number of Coastal employees were either veterans or currently serving in the National Guard or the reserves. Since several employees currently served in the guard or reserves and nearly 200 Coastal employees were veterans, the court said Washington’s discrimination claim strained credibility.
Second, Coastal documented six separate instances of misconduct by Washington related to his job performance. As the court observed, “It is not the court’s role to second-guess the employer’s disciplinary decisions under these circumstances.” The court said that especially was true when an employee like Washington simply makes a bare allegation that his termination was motivated by his military service.
Time to review your policies
The anniversary of the 9/11 attacks serves to remind us of the contributions and sacrifices made by the brave men and women who wear the uniform and the need for us to value those contributions. In that respect, the anniversary provides an important reminder to review and double-check your employee policies to ensure they comply with the USERRA requirements. Such a review is best done in consultation with your employment counsel so that you cover all the bases. Moreover, you should train your managers to make sure they are sensitive to the demands placed on employees who serve our country and the USERRA reemployment and nondiscrimination requirements.
Preventing USERRA claims
If employees who are entitled to USERRA’s protection have performance problems, they should be documented and addressed with the employee at the time. Documenting areas of concern with respect to employees always is a good idea, and it will assist you in defending any opportunistic claims of discrimination should you need to take an adverse employment action against a current or former member of the uniformed services.
Also, before taking action against any of your employees, it is always wise to consult with counsel. This especially is true when the employee may claim the protections of USERRA. Employees who have entered the uniformed services to protect and defend our 
country make very sympathetic plaintiffs, especially when they claim to have been discriminated against because of their service. Therefore, you and your counsel should discuss ahead of time whether you have sufficient documented evidence to take the adverse job action you are contemplating. Remember the old adage: An ounce of prevention is worth a pound of cure.
Bill Ruhling is an attorney with DiMuroGinsberg, PC in Alexandria, Virginia. He may be contacted at bruhling@dimuro.com.