From Wall Street to Wasilla, Alaska: Returning military personnel face employment discrimination

April 12, 2011

Insignia of US Army National Guard

In recent years, I have been contacted in my capacity as a lawyer by members of our armed forces who believed that their Wall Street employers violated the  Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). The most typical complaints fall into two categories:
  • wrongful termination of employment by an employer who had just learned of the employee's likely deployment overseas; or
  • unavailability of prior job for an employee returning to civilian life.

As far back as 2005, these issues surfaced among a number of Wall Street employees who were called to active duty. For some background, read: 

SIDE BAR: USERRA was intended to protect civilian job rights and benefits for veterans and members of the Reserve. Under USERRA an individual may be absent from work for military duty and retain reemployment rights for up to five years subject to certain exceptions including 

  • initial enlistments lasting more than five years,
  • periodic National Guard and Reserve training duty, and
  • involuntary active duty extensions and recalls (particularly during a time of national emergency).

Notably, reemployment protection does not depend on the timing, frequency, duration, or nature of an individual's service as long as the basic eligibility criteria are met. 

Disabled Veterans: USERRA requires that employers  make reasonable efforts to accommodate the disability. Service members convalescing from injuries received during service or training may have up to two years from the date of completion of service to return to their jobs or apply for reemployment. 

The Escalator: In accordance with what is known as the "Escalator," returning service-members must be reemployed in the job that they would have attained had they not been absent for military service with the same seniority, status and pay, as well as other rights and benefits determined by seniority. Moreover, reasonable efforts must be made to enable returning service members to refresh or upgrade their skills (via training or retraining) in order to help them qualify for reemployment (reemployment in different capacities or positions may be allowed  if the returning service member cannot qualify for the "escalator" position). 

While an individual is performing military service, he or she is deemed to be on a furlough or leave of absence and is entitled to the non-seniority rights accorded other individuals on non-military leaves of absence.  Similarly, USERRA provides that individuals performing military duty of more than 30 days may elect to continue employer sponsored health care for up to 24 months; however, they may be required to pay up to 102 percent of the full premium. For military service of less than 31 days, health care coverage is provided as if the service member had remained employed. Moreover, all pension plans are protected. 

For service of 

  • less than 31 days, the service member must return at the beginning of the next regularly scheduled work period on the first full day after release from service, taking into account safe travel home plus an eight-hour rest period;
  • more than 30 days but less than 181 days, the service member must submit an application for reemployment within 14 days of release from service;
  • more than 180 days, an application for reemployment must be submitted within 90 days of release from service.

Advance Notice: Among the obligations imposed upon service members under USERRA is the requirement that they provide advance written or verbal notice (as far in advance as is reasonably possible under the attendant circumstances) to their employers for all military duty unless giving notice is impossible, unreasonable, or precluded by military necessity. Additionally, service members are able (but are not required) to use accrued vacation or annual leave while performing military duty. 

The Department of Labor, through the Veterans' Employment and Training Service (VETS) provides assistance to all persons having claims under USERRA, including Federal and Postal Service employees. If resolution is unsuccessful following an investigation, the service member may have his or her claim referred to the Department of Justice for consideration of representation in the appropriate District Court, at no cost to the claimant. Federal and Postal Service employees may have their claims referred to the Office of Special Counsel for consideration of representation before the Merit Systems Protection Board (MSPB). 

Willful USERRA violations permits a court to award liquidated damages. Individuals who pursue their own claims in court or before the MSPB may be awarded reasonable attorney and expert witness fees if they prevail. 

For more information: 

Case in Point:  Chief Warrant Officer Goodwin, Army National Guard 

Former Wasilla, Alaska, Mayor Sarah Palin during her 2007 visit to Alaska Army National Guard unit stationed in Kuwait

On April 7, 2011, the United States Department of Justice ("DOJ") announced that it had filed a lawsuit in federal district court in Alaska against Air Methods Corporation and LifeMed Alaska LLC in order to enforce to employment rights of  Chief Warrant Officer Third Class Jonathon L. Goodwin of Wasilla, Alaska, an Army National Guard member. The DOJ lawsuit alleged that the defendants had violated USERRA by discriminating against and failing to reemploy Goodwin.  

DOJ alleges that Goodwin, a 20-year member of the Army National Guard with honorable service as both a fixed-wing and helicopter pilot, was employed by Air Methods as a helicopter pilot when he was called upon for a nine-month period of active duty, including a period of deployment to Iraq.   At the end of his deployment, it is alleged that Goodwin sought to be reemployed by Air Methods and assigned to a contract helicopter pilot position with LifeMed Alaska.   

DOJ alleges that LifeMed refused to accept Goodwin for the contract position because of the employer's purported bias against recently returned service members, as well as an unwillingness to accommodate Goodwin's possible future military obligations.   Moreover, DOJ alleges that Air Methods furthered LifeMed's discriminatory action by refusing to assign Goodwin to the LifeMed contract and, consequently, failed to offer Goodwin proper reemployment 

The case stems from a referral by the Department of Labor following an investigation by VETS.   The case will be jointly litigated by the Civil Rights Division and the U.S. Attorney's Office in Alaska. 

NOTE: The allegations in the DOJ Complaint are merely accusations and all persons are presumed innocent until and unless proven guilty in a court of law.