Employment Law Daily Employer willfully violated USERRA by replacing National Guard member who was absent for military training
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Monday, July 30, 2018

Employer willfully violated USERRA by replacing National Guard member who was absent for military training

By Ronald Miller, J.D.

Though a National Guard member was not guaranteed any shifts at the gym where she worked as a fitness trainer, an employer violated the Uniformed Services Employment and Reemployment Act (USERRA) by failing to promptly reemploy her when she returned from active duty, ruled the Eighth Circuit. While the employee was away at training, the gym’s owner deleted her from the scheduling app and hired a new employee to take shifts at the gym. Because the facts clearly indicated that the employer was aware of its obligations under USERRA, replaced the employee while she was on military duty, and did not later reemploy her when she returned following her service, it willfully violated the Act (Mace v. Willis, July 26, 2018, Kelly, J.).

The employee, a member of the South Dakota National Guard, was working as a fitness trainer when she left for three weeks of mandatory military training. In the months leading up to her departure, the employee was averaging 13.6 hours per week at work. Like other trainers, she was not guaranteed shifts at the gym. Instead, the gym’s owner or general manager would schedule trainers for shifts using a mobile app, and would sometimes call the employee to cover shifts of absent coworkers. There was no dispute that the employee timely notified the owner that she was a member of the National Guard, and that her departure was for mandatory military training.

Deleted from scheduling app. While the employee was away at training, the owner deleted her from the scheduling app and hired a new employee to take shifts at the gym. When she returned, she inquired why she could not access the app. Two days after the employee returned, the employer hired another new employee. Meanwhile, the gym’s general manager told the employee that she had been replaced. Although the employer later offered to put the employee back on the schedule, she decided to find other work instead.

The employee filed suit. After a bench trial, the district court found that the gym’s owner had violated the USERRA by failing to promptly reemploy the employee, and that the violation was willful. On appeal, the employer argued that it was not liable under USERRA because he put the employee back in the same position she left when she departed for training as it had complete discretion to assign no shifts to the employee at all. However, the Eighth Circuit disagreed, observing that the facts clearly indicated the employer replaced the employee while she was on military duty and did not later reemploy her when she returned following her service. It noted that the gym’s owner and general manager used the app to schedule employees’ shifts, so the effect of removing the employee from the app was to remove her from the pool of eligible workers. Moreover, the employer hired two additional staff members—one of whom was hired shortly after she returned—and the employee was told by the general manager that she had been replaced.

Lack of guaranteed shifts. The appeals court next addressed the question whether USERRA applies to employees who lacked guaranteed shifts. Here, the court found that USERRA’s implementing regulations, 20 C.F.R. § 1002.41, made clear that even temporary, probationary, and seasonal employees enjoy USERRA protections. Employers have an affirmative defense when the job in question “was for a brief, nonrecurrent period and there no reasonable expectation that the employment would have continued indefinitely or for a significant period.” But the employer did not raise the defense in the district court or on appeal. Accordingly, the employer was obligated to promptly reemploy the employee upon her return from mandatory military training.

Willful violation. The employer also contested the district court’s finding that it willfully violated USERRA. However, the appeals court observed that this was a factual argument and the employer had not shown clear error. At trial, the gym owner testified that he knew members of the armed forces enjoyed reemployment rights, and the employee warned the general manager that the employer was probably violating its obligations under the Act. Theese facts supported the inference that the employer “knew or showed reckless disregard for whether its conduct was prohibited by the Act.” Because the district court’s finding of willfulness was not clearly erroneous, the employee was entitled to liquidated damages.

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