Recently, the U.S. Supreme Court decided Staub v. Proctor Hospital, No. 09-400, U.S. Supreme Court (March 1, 2011), a USERRA case that should concern all employers, their managers, and HR professionals alike. USERRA (Uniformed Services Employment and Reemployment Rights Act) prohibits employment discrimination against a person on the basis of past military service, current military obligations, or intent to serve.
In Staub, the petitioner, an active Army reservist, filed suit against his employer for employment discrimination under USERRA on the ground that his termination was motivated by his supervisors who were hostile to his reservist obligations. The Court found the employer could be held liable under USERRA for employment discrimination since the adverse employment decision was influenced by the anti-military animus of the complainant’s supervisors.
Under USERRA, an employer cannot deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to a person on the basis of a past, present, or future service obligation. In addition, an employer cannot retaliate against a person because of an action taken to enforce or exercise any USERRA right or for assisting in an USERRA investigation.
USERRA applies to persons who perform duty in the “uniformed services,” which include the Army, Navy, Marine Corps, Air Force, Coast Guard, Army National Guard, Air National Guard, and Public Health Service commissioned corps, and reserve services, and certain disaster response work. Uniformed service includes active duty, active duty for training, inactive duty training, initial active duty training, funeral honors duty, and absence to determine fitness to perform any such duty.
USERRA covers nearly all employees, including part-time and probationary employees. USERRA applies to virtually all U.S. employers, regardless of size.
Under the law, employers are required to provide to persons entitled to the rights and benefits under USERRA, a notice of the rights, benefits and obligations under USERRA. Employers can meet this obligation by posting Compliance Poster Company’s “Your Rights Under USERRA” notice where employee notices are customarily placed. Given the far-reaching implications of the Staub decision, employers should also review USERRA, and take appropriate steps to avoid improper bias at all levels of management.