Employees who believe their employers harass them because of their military status may file complaints under the Uniformed Services Employment and Reemployment Rights Act (USERRA), according to a recent Alabama federal district court.
In that case, an Alabama National Guard member who was fired from his auto assembly job claimed his employer harassed him over his military status. He filed suit, claiming both and harassment. The court dismissed the termination complaint, but will allow his harassment case to go before a jury. (Dees v. Hyundai Motor Mfg. Ala. LLC, No. 07-306, MD AL, 2008)
USERRA-based harassment complaints are relatively new territory for the nation’s courts.
Although the law has been on the books since the mid-1990s, the U.S. Department of Labor only drafted regulations once the Iraq War began. The Pentagon’s heavy reliance on reservists and National Guard members to fill active duty rosters has created more potential employment-related disputes for service members coming home from Iraq and Afghanistan than previous conflicts have.
Neither USERRA nor the USERRA regulations specifically mention harassment as grounds for a complaint, but both are written so expansively that courts have traditionally given employees great latitude in filing complaints.
Still, the regulations are only a few years old, a mere blink of an eye in legal circles. That means employees are only now getting around to the more creative approaches to USERRA litigation.
The harassment angle is so new that the Alabama court could find but a single precedent—one dealing with federal government employees. In that case, the federal Merit Systems Protection Board ruled that a Department of Interior employee could allege harassment against his employer.
Will this decision lead to a parade of harassed reservists marching through the nation’s courtrooms? Maybe.
So far, the decision only affects cases tried in the Middle District of Alabama. It is a persuasive—but not binding—precedent for the rest of the 11th Circuit (Alabama, Georgia and Florida). Other courts may adopt the ruling or not as they wish.
What it means for employers
Still employers should not dismiss this decision. Military harassment, like sexual harassment and other types, does nothing to help productivity or profitability.
Employers facing cases in which veterans may have been harassed should adopt the same approach they use when dealing with other types of harassment:
- Train supervisors to recognize harassing behavior and stop it.
- Provide employees who believe they have been harassed with a contact other than their supervisor to report the harassment.
- Conduct fast, fair and thorough investigations once a complaint has been filed.
- Caution all parties against any form of retaliation.
- Employee represents herself? Be patient
- Third-party retaliation will stand up in court
- Employee acting as her own lawyer? Prepare for a long slog through the legal system
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