Rights of Individuals with Uniformed Service USERRA

Mar 2, 2016

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) prohibits discrimination against persons who serves, or has served, in the uniformed services. 38 U.S.C. § 4311. Any individual covered by USERRA shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment on the basis of their relationship to the uniformed services. For the purpose of USERRA applicability, the definition of uniformed services includes:

U.S. Army
U.S. Air Force
U.S. Navy
U.S. Marine Corps
U.S. Coast Guard
Any National Guard or Reserve component of the armed forces or commissioned corps of the U.S. Public Health Service. (38 U.S.C. § 4303)

Ordinarily, an employee who believes their rights have been violated can file a complaint with the Secretary of Labor or pursue their claim before the Merit Systems Protection Board (MSPB). However, the MSPB has ruled that it lacks jurisdiction to hear claims brought by individuals covered by a collective bargaining agreement that does not exclude violations of USERRA from the grievance procedure. Russell v. Equal Employment Opportunity Commission, 107 MSPR 171 (2007). (Holding that claims of USERRA violations fall within the scope of 5 U.S.C. 7121, which provides that the negotiated grievance procedure shall be the exclusive means for adjudicating matters that fall within the coverage of the collective bargaining agreement. Thus, where a negotiated grievance procedure does not explicitly exclude USERRA claims, the individual must pursue a claim through the grievance process.) Because NATCA’s agreements do not exclude USERRA rights from the grievance process, an individual who believes they have a claim cannot turn to the MSPB.

While a member covered by NATCA’s Collective Bargaining Agreements may not go before the MSPB, there is a great deal of MSPB case law that would serve as precedent for the individual rights of USERRA-eligible employees who pursue a grievance. It is important to note that the MSPB has affirmed that retirees and other individuals with prior military service are entitled to protection under the USERRA even if they are no longer subject to military service. Fahrenbacher, et al. v. Department of the Navy, 85 MSPR 500 (2000). However, in order to bring a successful USERR claim, a harmed employee must be able show that their military status was a motivating or substantial factor in the Agency’s actions. If the employee is able to establish this set of facts, the employer must prove, by a preponderance of evidence that the action would have been taken despite the individual’s military status. DeJohn v. Department of the Army, 106 MSPR (2007), Gaston v. Peace Corps., 100 MSPR (2005). It is also important to note the high burden of proving discrimination; the fact that an employee was not treated better than non-veterans would not, in itself, show discrimination. Gaston v. Peace Corps., 100 MSPR (2005). Because of the high burden, it is important to work with you facility representatives in compiling data related to the alleged discrimination. Especially important in this consideration is information related to harsher treatment of the individual in comparison to other employees. Further, any information that indicates this harsh treatment related to the individual’s relationship to the military would help establish the fundamentals of a USERRA claim.