A bipartisan group of seven senators have introduced legislation to expand the Uniformed Services Employment and Reemployment Rights Act (USERRA) to include protection for Transportation Security Administration (TSA) officers who are called to active duty.

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USERRA mandates that members of the uniformed services who hold civilian jobs are entitled to return to their civilian jobs upon completion of military service.

Transportation security officers (TSOs) employed by the TSA are currently excluded from USERRA protection. After the terrorist attacks of September 11, 2001, Congress included TSOs in a special category of federal employees considered critical to national security and exempted them from USERRA protection.

According to Senator Joseph Lieberman (D-CT), one of the bill’s sponsors, many transportation security officers “find themselves in a clearly unjust and inadvertent position.” Sen. Lieberman further noted that the proposed legislation would “simply require TSA to comply with USERRA, providing transportation security officers the protection of reemployment, to which every other type of worker – in both the private and public sectors – is eligible.” Sen. Lieberman is the chairman of the Senate Committee on Homeland Security and Governmental Affairs.

TSA has claimed that it voluntarily complies with USERRA, but without a legal mandate, National Guard members, reservists, and veterans who work as TSOs cannot be certain that they will be able to return to their jobs after a military deployment. According to the Veterans of Foreign Wars (VFW), at least two TSOs have attempted to appeal TSA actions under USERRA but were unsuccessful when both the Merit Systems Protection Board (MSPB) and the Office of Special Counsel ruled that they were not currently entitled to USERRA protections.

The Department of Justice (DOJ) recently settled a lawsuit against Lowe’s, a major hardware department store chain, citing violations of the Uniform Services Employment and Reemployment Rights Act (USERRA). USERRA mandates employers to rehire employees returning from a military deployment and not to terminate their employment for at least one year.

The DOJ determined that Lowe’s violated USERRA when the company dismissed Matthew King, a U.S. Army National Guard soldier and Iraq War veteran, without just cause.  King began his employment with Lowe’s in April 2008.  In September 2008, King notified Lowe’s of his impending deployment to Iraq, where he performed his military duties until May 2010.  After King’s honorable discharge, Lowe’s reinstated him to his previous position.  King’s manager questioned King about King’s earlier pursuit of unemployment benefits when he returned from his deployment.  Although King had dropped his unemployment claim and had never received any unemployment benefits, Lowe’s fired him.

King then sought support from the Veterans’ Employment and Training Service (VETS).  VETS determined that Lowe’s had violated USERRA by firing King without just cause within a year of his rehiring.  VETS referred the case to the DOJ Civil Rights Division, which advocated on behalf of King.  Lowe’s and the DOJ reached a settlement in which Lowe’s agreed to compensate King with $45,000 in liquidated damages and back pay.

According to The National Employment Lawyers Association’s On The Hill, the Veterans’ Benefits Act (VBA) of 2010, which amends the Uniformed Services Employment and Reemployment Rights Act (USERRA), is a clarification of the law and retroactively applies to USERRA claims.  The VBA clarifies that USERRA prohibits wage discrimination against servicemembers, i.e., paying servicemembers lower wages than co-workers in the same or similar position.  The VBA also requires courts to apply a multi-factor test when determining whether an employer is a successor-in-interest who can be held liable for a previous employer’s USERRA violation.  Those factors include:

• continuity of operations;
• similarity of facilities;
• continuity of work force;
• similarity of jobs and working conditions;
• similarity of supervisory personnel;
• similarity of machinery, equipment, and production methods; and
• similarity of products or services. 

For more information about The Employment Law Group® law firm’s USERRA Rights Practice, click here.

On Oct. 1, 2010, The Veterans’ Benefits Act of 2010 was sent to President Obama for his signature.  The Act expands USERRA to prohibit wage discrimination and creates a 36-month trial period for referring USERRA claims brought against Federal executive agencies to the Office of Special Counsel (OSC).  Under the trial program, the OSC shall handle USERRA claims brought by individuals who have a related claim under 5 U.S.C §1212 and any USERRA claim brought by an individual whose social security ends in an odd number.

The Act also contains several other improvements for veterans including amendments to the Veterans Group Life Insurance Program.  A copy of the Act is available here.

For more information about The Employment Law Group® law firm’s USERRA Rights Practice, click here.

Yesterday the House approved by voice vote S. 3023 (“Veterans’ Benefits Improvement Act of 2008”), to enhance the complaint process for the Uniformed Services Employment and Reemployment Rights Act (USERRA) and prohibit application of statutes of limitations to USERRA claims.  The Senate passed the bill by unanimous consent last week.  The bill will expedite the processing of USERRA claims by creating deadlines for agency responses.  In particular, the bill:

• Requires the Department of Labor’s Veterans’ Employment and Training Service (VETS) to complete its investigation and notify the employee of its results within 90 days of receiving a complaint; 
• Requires the VETS to refer a complaint to the Attorney General or Office of Special Counsel (OSC) within 60 days of receiving a complaint; and
• Requires the Attorney General or OSC to determine whether to provide legal representation to the employee and provide written notification to the employee on same within 60 days of receiving a referral.

The bill also calls for every federal agency to provide training to human resources personnel on employment and reemployment rights provided to federal employees under USERRA.