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USERRA Prevents Retaliation Against Employees For Asserting Rights Under The Statute

by | Jul 14, 2023 | Employment Law, Federal Law Update, Military Status Discrimination, Retaliation, Wrongful Termination |

Johannes Claus worked for the Canyon County’s Public Defenders office. Under a new policy, pay for this job was based on years of criminal law experience. Canyon Count decreased Claus’s years of service – and thus, his pay – because he had not been practicing criminal law for parts of the 13 years since he became a licensed attorney. This decrease included his time as a military attorney doing civil work with the United States Air Force Judge Advocate General’s Corp (“JAG”). This review and reduction was also done for six other attorneys who had not been in the military.

Claus complained that this was a violation of his rights under Uniformed Services Employment and Reemployment Rights Act (“USERRA”). Canyon County fired Claus in August 2018.

Does USERRA protect pay rights?

USERRA is a U.S. federal law that provides employment protection and rights to individuals who serve or have served in the uniformed services, including the Army, Navy, Airforce, Marines, Reserves, National Guard, and other uniformed services. While USERRA does not specifically address pay rights as its primary focus is on employment and reemployment rights, it does offer certain protections related to compensation. Here’s how USERRA helps safeguard pay rights:

  1. Continuation of Pay: Under USERRA, when an individual is called to active duty or military service, their civilian employer is generally required to provide continuation of pay for a limited period of time, usually up to 30 days. During this period, the employee continues to receive their regular pay as if they were still working for the employer.
  2. Seniority and Benefits: USERRA protects the rights of individuals returning from military service by requiring employers to treat them as if they had remained continuously employed. This includes maintaining their seniority and certain benefits, which can have an impact on pay. Upon reemployment, individuals are entitled to any pay raises or advancements they would have received had they not been absent due to military service.
  3. Pension and Retirement Plans: USERRA ensures that military service is treated as equivalent to civilian employment when it comes to pension and retirement plans. Employers are required to make contributions to these plans on behalf of employees who are on military leave, allowing individuals to maintain their retirement benefits and potential pay-related benefits tied to those plans.
  4. Discrimination in Pay: While USERRA does not explicitly focus on pay discrimination, it does prohibit employers from discriminating against employees based on their military service. This means that employers cannot use an employee’s military service as a basis for reducing their pay or denying them promotions or other pay-related opportunities.

It’s important to note that USERRA provides a range of protections beyond pay rights, including job reinstatement, non-discrimination, health insurance, and protection against retaliation. If you believe your rights under USERRA have been violated, it is advisable to consult with legal counsel.

Within several weeks of raising his USERRA complaint to the County, the issue was positively resolved in Claus’s favor.

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Does USERRA have anti-retaliation protections?

Yes, USERRA does have anti-retaliation protections to safeguard individuals from adverse actions taken by employers in response to their exercise of rights under the law. These protections are in place to ensure that employees are not penalized or subjected to negative consequences for serving in the uniformed services or asserting their rights under USERRA. Specifically, USERRA prohibits employers from retaliating against employees who assert their rights under the statute. This includes actions such as wrongful termination, demotion, denial of promotions, reduction in pay or benefits, or any adverse employment actions taken as a result of an employee’s military service or their exercise of USERRA rights.

In a USERRA discrimination or retaliation claim, the courts must determine whether the employee experienced an adverse employment action as a crucial step. If the employee faced an adverse employment action, a discrimination claim under USERRA follows a burden-shifting approach. In this approach, the employee bears the initial burden of demonstrating, with a preponderance of evidence, that their protected status was a significant or motivating factor in the adverse employment action. The employer, as an affirmative defense, can avoid liability only by proving that they would have taken the same action regardless of the employee’s protected status.

If military discrimination or retaliation is proven, USERRA provides remedies to employees, including reinstatement to the job they would have held if not for their military service, back pay, and compensation for any loss of benefits or opportunities. Additionally, employers who violate USERRA’s anti-retaliation provisions may face legal consequences and be subject to enforcement actions by the U.S. Department of Labor.

It is important for employees who believe they have faced retaliation under USERRA to seek advice from the best employment lawyers near them.

Canyon County defended Claus’s wrongful termination case on two fronts: (1) that there was no connection to Claus’s USERRA complaint, which was resolved in his favor 10 months prior; and (2) that it would have fired Claus any way for serious violations. Specifically, the employer asserted that Claus violated attorney-client confidentiality, court rules, and ethical requirements.

The incident in question involved a Child Protective Act (“CPA”) in which Claus was representing a defendant. The Court had ordered that because of the confidential information at issue, documents were to be filed under seal – which means that the public would not have access or be able to see the documents. At his direction, Claus’s legal assistant, Christina Taillon, filed a Witness/Exhibit List on the day of the deadline. However, later that day, Claus realized the need to submit an Amended Witness/Exhibit List but did not know how to file it. Since his realization came after hours, no staff was available to file it for Clause. So, he emailed it to his friend Ashley Wilson, who agreed to file it for him. The problem, however, was that she was not associated with the Canyon County Public Defender’s Office nor part of the case, which meant that by giving her the information, including the minor’s previously hidden names and confidential witness contact information, Claus had violated the court’s order and client confidentiality.

The United States Court of Appeals for the Ninth Circuit held that based on this evidence Claus could not prove his USERRA claim and that even if he could, the same evidence results in the County succeeding on its affirmative defense:

The material facts surrounding Plaintiff’s termination are not disputed: he disclosed confidential information to a third party, his supervisors investigated the disclosure shortly thereafter, and his supervisors have consistently maintained their belief that he engaged in professional misconduct. It is undisputed that Plaintiff’s supervisors resolved the pay dispute in his favor within three weeks of his request for a salary increase and months before Plaintiff made the unauthorized disclosure of the witness list. The lack of a connection between Plaintiff’s exercise of a USERRA-protected right and his termination is fatal to his USERRA claim. Id.

Despite the clear support for the district court’s decision, Plaintiff contends his disclosure of the witness list was a pretextual basis for his termination. He concedes that there are no examples of attorneys who disclosed confidential information outside the office but were not fired because they were not veterans demanding higher pay. He instead relies on other circumstantial evidence, but it fails to create a plausible nexus between his pay dispute and his termination.

Plaintiff has not identified evidence that impugns the sincerity of the supervisors’ belief that his disclosure of confidential information to a third party constituted misconduct, which means there is no genuine issue of material fact for trial. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002). Because Plaintiff fails to identify any evidence that impugns the sincerity of his supervisors’ beliefs, it is undisputed that they took what they believed was the proper course of action to respond to Plaintiff’s disclosure of the witness list. Thus, the district court properly granted summary judgment to Defendant on Plaintiff’s USERRA claim.

Claus v. Canyon County, No. 22-35292, 2023 WL 4118016, at *1 (9th Cir. June 22, 2023).

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Is my employer violating me USERRA rights?

If you served in the armed forces and believe that our USERRA rights are being violated, you should contact a military discrimination attorney near you to evaluate your specific situation. USERRA is a very complicated law that is very dependent on the specific facts of each case, which makes getting generalized answers very difficult and unreliable. To that end, it would be best to call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Call our top employment lawyers in Ohio, Michigan, North Carolina, and Kentucky to get help now. Spitz, The Employee’s Law Firm and its experienced attorneys are dedicated to protecting employees’ rights and solving employment disputes.

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