United States: Employers Are Strictly Liable For Failure To Reemploy Qualified Service Members

The Sixth Circuit recently held in Petty v. Metro. Gov't of Nashville-Davidson County, Case No. 07-5649, that a plaintiff seeking reemployment under the Uniformed Services Employment and Reemployment Rights Act of 1994 ("USERRA") is not required to make a showing of discrimination in order to sustain a reemployment claim. The Sixth Circuit dismissed as dicta language in Curby v. Archon, 216 F.3d 549, 557 (6th Cir. 2000), that suggests such a requirement and noted that the Department of Labor has specified that "[t]he 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."

The Issue

At issue in Petty v. Metro was whether the defendant violated the plaintiff's, a police officer and former army national guardsman, reemployment rights and the antidiscrimination provision of USERRA when it (1) delayed rehiring him to due to the defendant's return-to-work process; (2) did not properly rehire him to the position which he held prior to his deployment to Kuwait; and (3) impermissibly denied him the ability to work off-duty security jobs.

The Explanation

In concluding that the defendant did, in fact, unnecessarily delay the plaintiff's reemployment and did not properly return him to the position he held prior to deployment, the Court carefully distinguished the reemployment provisions of USERRA, Sections 4312 and 4313, from the antidiscrimination provision, Section 4311. Section 4311 imposes a burden of proving that the employer discriminated against him or her based on a protected status or activity. In contrast, the Court explained that Section 4313 simply states that any "person entitled to reemployment under section 4312 shall be promptly reemployed in a position of employment in accordance with the order of priority as outline in Section 4313," and poses no requirement of proving discrimination at all. Since the court found that the plaintiff met the requirements of Section 4312, under the plain language of Section 4313, the defendant unnecessarily delayed the plaintiff's reemployment by requiring him to comply with its return-to-work process when USERRA expressly states that it "supersedes any ...contract, agreement, policy, plan, practice or other matter that reduces, limits or eliminates in any manner any right or benefit provided" under the statute. In short, the defendant could not use its own process to delay the plaintiff's reemployment or to determine whether the plaintiff was qualified for the position that he was otherwise rightfully entitled to under the plain language of USERRA.

The court applied Section 4311, the antidiscrimination provision, to the plaintiff's claim that he was impermissibly denied the ability to work off duty security jobs. This allegation should have been brought as a discrimination claim, not a failure to reemploy claim, because working off duty is a "privilege or benefit" of employment itself. Since the court concluded that the district court had not considered all the plaintiff's evidence before granting the defendant's motion for summary judgment, it remanded this portion of the plaintiff's claim to the district court.

For Employers

What does this case mean for employers? It serves as clarification and a reminder of the basic framework of USERRA, which 1) requires prompt reemployment if the requirements of Section 4312 are met, 2) requires employers to return service members to positions as outlined in Section 4313, 3) protects employees from discrimination by Section 4311 following reemployment, and 4) requires termination only for "just cause" within the timeframes contained in Section 4316.

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