Kevin Crayon II
Military Discrimination! Filing a USERRA Claim with MSPB
The Uniformed Services Employment and Reemployment Rights Act of 1994 or USERRA is a federal law designed to encourage non-career service in the uniformed services by minimizing the disadvantages to civilian careers and employment which can result from such service; to minimize the disruption to the lives of persons performing service in the uniformed service by providing prompt reemployment of such persons upon their completion of military service; and to prohibit discrimination against persons because of their service in the uniformed services. See 38 U.S.C. § 4301.
Two Types of Violations
If you're in the non-career military service (such as one of the reserve components of the U.S. military), and you're called away to serve your country, you should not have to endure adverse actions and harassment because of your service!
There are two main types of wrongful actions: (1) interference with your re-employment rights, or (2) discrimination in denying you an employment benefit. In the discrimination scenario, you have to first show that your military service was a substantial or motivating factor in denying you the employment benefit. At that point, the burden shifts to the employer to show they would have taken the same action anyway.
What's great about a USERRA claim is that you can file it anytime with the MSPB; no time limits. You have two routes: (1) file it directly with the Merit Systems Protection Board ("MSPB" or "Board"), or (2) you can first go to the Department of Labor ("DOL").
We, of course, prefer to deal with the MSPB because we specialize in litigation before the Board. The Board has detailed regulations that govern how to file and prosecute your USERRA Claim. See 5 C.F.R. § 1208. If you win your USERRA claim, the Board can order compensation and attorney fees.
There are cases, however, when it may be advisable to give the DOL a first shot at your USERRA claim, particularly if you want to get the process started to get the ball rolling with a DOL complaint, and with full assurances that you can always bring an appeal to the Board if you're dissatisfied with DOL's determination.
If you've been denied re-employment or employment benefits because your military service. Contact an experienced attorney to discuss your options.