WHAT DOES A USERRA VIOLATION LOOK LIKE?

Most everyone knows a law was passed in the 90’s protecting federal employees who are also armed services members or veterans from discrimination. But we suspect not many feel confident that they could recognize a potential violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). So, we thought we would pass on something taken verbatim from the Office of Special Counsel web page that highlights a few examples of actual situations where OSC used the law to protect feds. Union reps might want to forward this information to members to help them recognize how the law could work for them.

• An Army Reservist sustained injuries during military service, rendering him unable to perform his former duties as a Federal Air Marshal after his discharge. OSC intervened and negotiated a settlement whereby the agency agreed to place the Reservist on paid light duty for approximately six months while his disability retirement application was processed.
• The Air Force refused to allow the reemployment of an Army National Guard member as a federal contractor following his return from active duty. As a result, he was unemployed for several months before finding a new job. OSC informed the Air Force that it could be liable for improperly interfering with the Guardsman’s reemployment rights under USERRA. After OSC’s intervention, the Air Force agreed to pay the Guardsman $18,500 in lost wages as compensation.
• While working as a Deputy U.S. Marshal, an Air Force Reservist was deployed for several months in support of Operation Enduring Freedom. After returning to his civilian employment, he received a lower-than-usual performance rating, resulting in a significantly smaller performance bonus than he had received in the past, and which he was told was due to his absence for military duty.. As a result of OSC’s intervention, the agency agreed to retroactively upgrade the Reservist’s performance rating, grant him a time-off award, and give him additional hours of paid leave to approximate the cash award he should have received.
• After a year-long call-up to active duty with his National Guard unit, an Army civilian police officer alleged that he was not promoted to the next higher grade level at the same time as his co-workers (who were not deployed). As a result, he missed out on a promotional opportunity because he lacked the necessary time-in-grade. After OSC’s investigation, the agency offered the Guardsman full relief, including a retroactive promotion and corresponding back pay.
• A National Guardsman alleged that his federal agency threatened him with termination because the agency believed his military service made him “unreliable.” His agency also denied him other benefits of employment, including overtime, temporary overseas duty assignments, promotion, and training. OSC’s Alternative Dispute Resolution (ADR) Unit mediated the case. As a result, the Guardsman agreed to withdraw his USERRA claim in exchange for both monetary and time off awards, an assigned mentor to help prepare him for advancement, and the opportunity for a temporary overseas duty assignment. The agency also agreed to conduct USERRA training for supervisors and managers to reduce the risk of future USERRA violations.
• A Guardsman alleged that his federal agency violated USERRA’s reemployment requirements when it assigned him to a different geographical region upon his return from a deployment, resulting in a loss of status and pay. OSC’s ADR Unit mediated a settlement whereby the Guardsman was reassigned back to his pre-deployment position and group, making him whole under USERRA.

Given how few grievances have been taken to arbitration involving USERRA rights, if a union reps encounters a situation s/he should probably check with legal counsel about whether to pursue it through the grievance procedure or the OSC, which works with the Department of Labor to deal with alleged infractions. DOL has its own very helpful web site on the issue, along with annual reports that provide even more examples of potential violations.