This year, with the passage of the Senator Elizabeth Dole 21st Century Veterans Healthcare and Benefits Improvement Act ("the Act"), Congress made important updates to the Uniformed Services Employment and Reemployment Rights Act (USERRA). These changes expand protections against retaliation and enhance potential awards under USERRA.
Here are the key changes made by the Act that employers should keep in mind:
- Expands the types of actions that can be considered retaliatory. Now, not only can an "employment action" support a claim but so also can any "other retaliatory action." (While most other employment discriminations laws protect employees from "materially adverse actions," this amendment to USERRA arguably makes its protections even broader.)
- Broadens the circumstances under which a court may grant early injunctive relief to a complaining service member. Specifically, courts may not consider if the complaining service member could be made whole by an award of back pay when deciding whether to award injunctive relief.
- Increases the value of the liquidated damages that can be awarded to a successful plaintiff, allowing the court to award $50,000 in liquidated damages even where the amount of wages awarded is lower than that.
- Revises the circumstances under which liquidated damages can be awarded from "willful" to "knowing" violations.
- Makes the award of attorneys' fees to a successful litigant mandatory.
While these changes do not necessarily warrant a revision to any policy or handbook, they should lead employers to be open to reviewing and investigating a wider range of complaints from service members about negative actions in the workplace. Moreover, these changes will impact how companies evaluate the litigation risk underpinning any USERRA actions brought by service member employees.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
