UNDERSTANDING USERRA- THE FIVE YEAR LIMIT May 23 2016, 0 Comments

THIS INFORMATION SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. YOU SHOULD STRONGLY CONSIDER THE BENEFITS OF CONSULTING WITH A TRAINED LEGAL PROFESSIONAL

The right to reemployment pursuant to USERRA is determined by five eligibility criteria.  Once of the criterion is the cumulative period or periods of uniformed service in relation to the employee-employer relationship can not exceed five years.

USERRA is a Congressional rewrite of the Veterans' Reemployment Rights (VRR) law, which dates back to the 1940s.  As part of that rewrite Congress provided that duty performed prior to December 12, 1994 does not count towards USERRA's five-year limit if it did not count toward the VRR's four-year limit.    

USERRA's five-year limit only includes "such person's cumulative period of service in the uniformed services, with respect to the employer relationship for which a person seeks reemployment."  38 U.S.C. 4312(c).  

Section 4312(c) of USERRA contains the five-year limit, including the eight statutory exemptions from the limit.  If you feel that you are approaching this five-year cumulative mark and need help determining whether you have a claim under USERRA contact an experience USERRA and employment law attorney.  Attorneys here at CitizenSoldierLaw.com can help you navigate through the 8 statutory exemptions and whether any of your service is exempt from USERRA's five year limitation.

- USERRA AND THE EFFECT OF ARBITRATION AGREEMENTS September 28 2015, 0 Comments

THIS INFORMATION SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. YOU SHOULD STRONGLY CONSIDER THE BENEFITS OF CONSULTING WITH A TRAINED LEGAL PROFESSIONAL

Early decision on the effect of arbitration seemed to indicate that USERRA section 4302(b) overrides agreements to submit future claims to arbitration, however the 5th and 6th Circuit court of appeals have ruled otherwise. 

USERRA OVERRIDES ARBITRATION AGREEMENTS

Garret v. Circuit City Stores Inc., 338 F.Supp. 2d 717 (N.D. Tex 2004)

Breletic v. CACI Inc., 2006 U.S. Dist. Lexis 4916 (N.D. Ga. January 24, 2006)

• "[a]n express waiver of future statutory rights, such as one that an employer might wish to require as a condition of employment, would be contrary to the public policy embodied in the Committee bill and would be void" in order to conclude that Congress intended that a waiver of a judicial forum would not be enforceable.“

Lopez v. Dilliard’s Inc., 382 F.Supp. 2d 1245 (D.Kansas 2005)

USERRA DOES NOT OVERRIDE ARBITRATION AGREEMENTS

Garrett v. Circuit City Stores Inc.,449 F.3d 672 (5th Cir. 2006) – on appeal from N.D. Texas

Landis v. Pinnacle Eye Care LLC, 537 F.3d 559 (6^th Cir. 2008) – RESULT: stay pending arbitration

Will v. Parsons Evergreene, LLC, 2008 U.S. Dist. LEXIS 105131, (D. Colo. December 19, 2008) – RESULT: Motion for dismissal denied, motion for stay pending arbitration granted

• Said Lopez erred as arbitration was not a prerequisite for arbitration rights, it serves as a waiver of a judicial forum for resolution of rights under USERRA
• Said the House Committee Report relied on in Breletic was ambiguous as to whether “future statutory rights” includes only substantive rights under USERRA or also includes the procedural right to a judicial forum. Nothing in the Report showed an intent to repeal the FAA for USERRA claims. Given this ambiguity, to interpret the Report's reference to "future statutory rights" as relating to a right to a judicial forum, as the Breletic court did, "would run afoul of the presumption that arbitration provides a fair and adequate mechanism for enforcing statutory rights." Rosenberg v. Merrill Lynch, Pierce, Fenner & Smith, 170 F.3d 1, 13 (1st Cir. 1999)
• Ultimately, the Court found Garrett persuasive

Ohlfs v. Charles Schwab & Co., 2008 U.S. Dist. LEXIS 82943 (W.D. Colo. September 25, 2008) – stay granting pending arbitration

• “My research confirms thatcases that have reviewed the issue after the ruling in Garrett v. Circuit City, have followed its rationale and have ruled that USERRA does not preempt arbitration agreements. See e.g. Kitts v. Menards, Inc., 519 F.Supp.2d 837 (N.D. Ind. 2007); Ernest v. Lockheed Martin Corp., 2008 U.S. Dist. LEXIS 59985, 2008 WL 2958964 (D.Colo. Jul 29, 2008); Klein v. City of Lansing, 2007 U.S. Dist. LEXIS 36825, 2007 WL 1521187 (W.D.Mich. May 21, 2007). Just over a month ago, the Sixth Circuit, in Landis v. Pinnacle Eye Care, LLC, 537 F.3d 559 (6th Cir. Aug.11, 2008) -- after a detailed and extensive review of Garrett v. Circuit City -- ruled that USERRA claims are arbitrable.”
• “In addition, to the extent that Ohlfs relies ondistrict court cases that have held that  4302(b) superseded an arbitration agreement between an employee and employer as to USERRA claims -- see e.g. Lopez v. Dillard's, supra, and Breletic v. CACI, Inc.-Federal, supra -- this is no longer the current state of the law as discussed above.”

If another Court of Appeals in another part of the country reaches a result on this issue that is contrary to the result reached by the Fifth Circuit and now the Sixth Circuit, the Supreme Court likely will grant certiorari (discretionary review) in order to resolve the conflict among the circuits.

- USERRA AND THE "CAT'S PAW" THEORY November 07 2014, 0 Comments

The Uniformed Services Employment and Reemployment Rights Act provides in relevant part:

"A person who is a member of... or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership,... or obligation." 38 U. S. C. §4311(a).

It elaborates further:

 "An employer shall be considered to have engaged in actions prohibited... under subsection (a), if the person's membership... is a motivating factor in the employer's action, unless the employer can prove that the action would have been taken in the absence of such membership."

The central difficulty in many USERRA cases is the "motivating factor in the employer's action."  When the company official who makes the decision to take an adverse employment action is personally acting out of hostility to the employee's membership in or obligation to a uniformed service, a motivating factor obviously exists.  In Staub v. Proctor Hosp., 131 S.Ct. 1186 (2011), the Plaintiff sought to hold the employer responsible for the discriminatory actions of his agents.  The Supreme court ultimately held, "if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action,  and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA."