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Do you have employees covered by USERRA? Warning: You could be personally liable for bias

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in Discrimination and Harassment,Employment Law,Firing,Hiring,HR Management,Human Resources,Leaders & Managers,Office Management,Performance Reviews,Records Retention

Managers, supervisors and HR professionals, beware: Courts are cracking down on employers that punish employees who serve in the military.

One way is by clarifying that those who participate in hiring and firing decisions may be held personally liable for violating the Uniformed Services Employment and Reemployment Rights Act (USERRA).

Here’s the bottom line: Anybody in the supervisory chain of command of a service member’s civilian job who has a say in an adverse action against the employee may be liable if he helped prepare performance evaluations or even if he was simply involved in daily supervision.

Plus, the USERRA has no statute of limitations. An employee can file suit long after the alleged incident. That makes the USERRA unique among employment discrimination laws, which typically require fast action.

Recent case: Oakley Baldwin worked for the city of Greensboro as a solid-waste manager. He was one of 270 employees, but the only one with a military-service obligation.

Baldwin got good reviews. Then he received a call-up notice to report for active duty with the Coast Guard. Almost immediately, Baldwin said his direct supervisors began to harass him about his service obligation.

When he complained, he learned that his job would be eliminated immediately following his departure for active duty because of budget cuts. Then he was told the only way he could receive his (already earned) military pay and other benefits was by signing a release promising not to sue the city. He signed the release, got his money, went on active duty—and never again worked for Greensboro.

Six years later, he sued the city and his two former supervisors, alleging they violated the USERRA by terminating him. Baldwin sued the supervisors personally, so if he wins the case, he can collect damages out of their pockets.

In court, Baldwin said he believes the city didn’t terminate anyone else because of budget cuts at the time he signed the release.

The city and the supervisors argued that the lawsuit was too late. But the court disagreed, pointing out that the law has no time limit on filing suit, at least since its last revision in 2008.

The supervisors argued that they couldn’t be personally liable. But the court pointed out that the law and implementing regulations specify that “employer” includes “any person, institution, organization or other entity that pays salary or wages for work performed, or that has control over employment opportunities.” Only those who perform strictly administrative duties like maintaining personnel files fall outside the definition. If you have any direct influence on employment decisions, you are an employer.

Finally, the defendants argued that Baldwin had signed a release. That argument was also shot down. The court said that an agreement to give up the right to sue for money already due was not a valid contract. Baldwin’s lawsuit now moves forward. (Baldwin v. City of Greensboro, et al., No. 1:09-CV-742, MD NC, 2010)

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