You probably already know that the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) generally requires an employer to restore an employee to his or her previous position of employment upon returning from military duty. But you may not be familiar with an employer’s obligations to an employee during the time that employee is away on military leave. In particular, what are your obligations as far as health benefits offered to employees?
The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) is unique among employment laws, in part due to the affirmative obligations it puts on the employer. For example, when an employee returns to work after having taken more than 90 days of leave under USERRA, it is not enough that the employer gives the employee his or her old job back. Instead, the employer must place the employee in the position he or she likely would have had but for the military service. So, suppose an employer typically advances employees based upon length of employment. And during the one year an employee was serving in the military, the employee would have advanced to another position. Under USERRA, when the employee returns, he is not to be put back in his old position, but in the position he would have held had his employment not been interrupted by military service. This is known as the “escalator” position.
With the wars in Iraq and Afghanistan winding down, and more and more wounded veterans of those conflicts returning to the workforce, employers would be well advised to familiarize themselves with their responsibilities to disabled veterans. While most employers are familiar with the requirements of the Americans with Disabilities Act (ADA), you should also be aware of the similar, but sometimes more stringent, provisions of the Uniformed Services Employment and Reemployment Rights Act (USERRA). Although both acts impose requirements on employers to accommodate those with disabilities, there are a few differences.
Several months ago, the Fifth Circuit Court of Appeals (which covers Louisiana, Mississippi, and Texas) issued an extremely interesting opinion and, in the process, became the first federal appellate court to definitively address whether the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) created a claim for a hostile work environment based upon membership in the uniformed services.
Last week, the Supreme Court of the United States released an important decision addressing the “cat’s paw” theory of liability in employment discrimination cases that will have far-reaching implications. Under the cat’s paw theory, a plaintiff can hold an employer liable for the animus of a supervisor who was not charged with making the ultimate employment decision, but, nonetheless, influenced the decision. The term “cat’s paw” derives from an ancient fable in which a monkey persuades a cat to extract a roasting chestnut from a fire. The cat retrieves the chestnut but burns his paw in the process, allowing the monkey to take off with the chestnut while the cat has nothing to show for his labor.