Diversity Insight

Giving the Boot to Kickboxer Violated USERRA

As a recent appellate decision demonstrates, the scope of protection afforded to servicemembers and veterans under the Uniformed Services Employment and Reemployment Rights Act (USERRA) is broad. Employers should err on the side of caution when dealing with employees returning from any military service, no matter how limited or how brief their tour of duty or training.

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Background

Kieshia Mace, a member of the South Dakota National Guard, was employed as a part-time trainer at Kickbox Dakota when she left for three weeks of mandatory military training. In the months leading up to her departure, she averaged 13.6 hours a week at Kickbox Dakota. Mace, like the other fitness trainers, was not guaranteed shifts at the gym. Instead, Kickbox Dakota’s owner, Corey Willis, or his general manager would schedule trainers for shifts using a mobile app and would sometimes call Mace in to cover shifts for coworkers. There was no dispute that Mace timely notified Willis of her membership in the National Guard and her need to attend mandatory military training.

While Mace was away at training, Willis deleted her from the scheduling app and hired a new employee. When Mace returned, she asked why she couldn’t access the scheduling app. Two days after her return, Willis hired a second new employee. Meanwhile, the general manager told Mace that she had been replaced.

Although Willis later offered to put Mace back on the schedule, she decided to find other work instead. She then filed suit, and after a bench trial, the federal district court found that Willis had violated USERRA by failing to promptly reemploy her. The court found that the violation was willful, which entitled Mace to liquidated damages in an amount equal to any lost wages and benefits. Willis appealed to the 8th Circuit.

8th Circuit’s Decision

The court of appeals noted that USERRA protects “any person whose absence from a position of employment is necessitated by reason of service in the uniformed services” and generally entitles servicemembers to reemployment “in the position of employment in which [they] would have been employed if their continuous employment . . . had not been interrupted” by military service. The court went on to hold that although an employee isn’t entitled to a better position than if she had remained in the civilian job, USERRA “must be broadly construed in favor of its military beneficiaries.”

Willis argued that he wasn’t liable under USERRA because he did put Mace back in the same position she left when she departed for training since she was an employee whom he had complete discretion to assign no shifts at all. The court of appeals rejected his reasoning, finding the facts clearly indicated that he replaced her and didn’t later reemploy her.

The court noted that Willis and his general manager used the app to schedule employees’ shifts, so by deleting Mace from the app, they effectively removed her from the pool of eligible workers. Willis also hired two additional staff members—one while Mace was gone and one shortly after she returned—and told Mace (through the general manager) that she had been replaced.

The court found it was irrelevant that Mace didn’t work guaranteed shifts, noting USERRA’s implementing regulations make it clear that even temporary, probationary, and seasonal employees enjoy the Act’s protections. And although employers do have an affirmative defense when the job in question is “for a brief, nonrecurrent period and there is no reasonable expectation that the employment would have continued indefinitely or for a significant period,” Willis didn’t raise that defense before the district court or on appeal, so it wasn’t applicable in this case. Moreover, based on the facts, it was by no means clear that he would have prevailed if he had raised it.

Under USERRA, Willis was obligated to promptly reemploy Mace upon her return from mandatory military training. The court went on to state that although that requirement may burden employers, USERRA reflects Congress’ determination that such a burden is justified to ensure that members of the armed forces don’t lose their livelihoods because of their service to the nation.

Willis also contested the district court’s finding that he willfully violated USERRA. Because that’s a factual argument, he had to show clear error to support a reversal of the ruling. At trial, Willis testified that he knew members of the armed forces enjoyed reemployment rights, and Mace testified that she warned the general manager that Kickbox Dakota was probably violating its obligations under USERRA. Those facts were sufficient to support the inference that Willis (and by extension, Kickbox Dakota) “knew or showed reckless disregard for whether its conduct was prohibited by the Act.” Because the district court’s finding of willfulness wasn’t clearly erroneous, Mace was entitled to liquidated damages.

Bottom Line

Employers must remain mindful of servicemembers’ reemployment rights. If an employee provides the required notice that an absence is due to military service, she is generally entitled to reemployment in the same job or a position that’s equal in pay and benefits to the job she left to perform military service (which includes training). In this case, the amount of pay the employee lost might have been small since she was averaging fewer than 14 hours a week, but added to the employer’s costs to defend the case and pay her attorneys’ fees, those damages become quite significant. It would have been far better to simply reinstate her as a part-time trainer working 14 hours a week.

Steve Jones is an Attorney at Jack Nelson Jones & Bryant, P.A and the Editor of the Arkansas Employment Law Letter. He can be reached at sjones@jacknelsonjones.com.