Category Archives: Employees and the Military

USERRA Leave: The “Most Favorable Treatment” Requirement

The Uniform Services Employment and Reemployment Rights Act (“USERRA”) requires that a USERRA leave be given the “most favorable treatment” to any “comparable leave” provided by the employer.  20 C.F.R. § 1002.150.  Since most USERRA leaves are unpaid, this “most favorable treatment” requirement raises questions when an employer offers different types of paid leave.  If an employer gives two days’ paid leave for a bereavement leave, does an employee on a USERRA leave have the right to two days’ pay?

The key concept is “comparability” – an imprecise term, indeed.  USERRA does provide some refinement:

If the non-seniority benefits to which employees on furlough or leave of absence are entitled vary according to the type of leave, the employee must be given the most favorable treatment accorded to any comparable form of leave when he or she performs service in the uniformed services. In order to determine whether any two types of leave are comparable, the duration of the leave may be the most significant factor to compare. For instance, a two-day funeral leave will not be “comparable” to an extended leave for service in the uniformed service. In addition to comparing the duration of the absences, other factors such as the purpose of the leave and the ability of the employee to choose when to take the leave should also be considered.

20 C.F.R. § 1002.150 (emphasis added).  Thus, points of comparability are the duration, purpose, and timing of other leaves.  While a paid sabbatical leave may be comparable, a two-day bereavement leave is not.  But the USERRA comparability requirement is far from fully developed.  Failure to comply can result in a complaint to the U.S. Department of Labor and the risk of enforcement penalties.

Takeaway:  An employer who voluntarily provides pay for otherwise unpaid leaves needs to keep an eye on the USERRA comparability requirement.  A good resource for checking your thinking on comparability is the web page and helpline for the U.S. Department of Defense, Employer Support of the Guard and Reserve Office (ESGR).

Qualifying Exigency Leave Under the Family and Medical Leave Act (FMLA)

The Family and Medical Leave Act (“FMLA”) allows an eligible employee to take leave because of any “qualifying exigency” arising out of the fact that a spouse, son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.  See 29 U.S.C. 2612(a)(1)(E).  “Covered active duty” is generally defined as deployment of either a regular or reserve member of the Armed Forces to a foreign country.  See 29 U.S.C. 2611(14).

The Department of Labor’s FMLA regulations define the types of “qualifying exigencies” for which leave may be required to include the following:

  1. Short Notice Deployments, including issues that arise from a deployment notification received seven days or less before the date of deployment;
  2. Military Events and Related Activities, including military ceremonies, programs, or events, family support or assistance programs, or informational briefings that are related to the deployment;
  3. Childcare and School Activities, including (i) making arrangements for alternative childcare; (ii) providing childcare on an urgent, immediate basis; (iii) enrolling in or transferring to a new school or day care facility; and (iv) attending meetings with staff at a school or day care facility;
  4. Financial and Legal Arrangements, including (i) making or updating financial or legal arrangements, such as executing powers of attorney or transferring bank accounts, enrolling in the Defense Enrollment Eligibility Reporting System (DEERS), obtaining military ID cards, or preparing or updating a will or living trust; and (ii) acting as a covered military member’s representative before a federal, state, or local agency for purposes of obtaining, arranging, or appealing military service benefits;
  5. Counseling, including attending counseling sessions for the employee, a covered military member, or a child related to the deployment;
  6. Rest and Recuperation, including up to five days of leave to spend time with a covered military member who is on short-term, temporary, rest and recuperation leave;
  7. Post-Deployment Activities, including (i) time to attend arrival ceremonies, reintegration briefings and events, and any other official ceremony or program sponsored by the military; or (ii) time to address issues that arise from the death of a covered military member; and
  8. Additional Activities as agreed upon by both the employer and employee.

See 29 C.F.R. § 825.126.

The DOL also has a certification form that employers can use for an employee’s request for qualifying exigency FMLA leave, which is available here.

Takeaways:  There are a variety of potential situations that may make an employee eligible for qualifying exigency leave under the FMLA.  Employers with employees who have family members in the military should make sure that they are familiar with what constitutes a “qualifying exigency” so that they can effectively administer FMLA leave.

New Statute Provides for Voluntary Veteran’s Preference in Hiring and Promotion

A newly enacted Minnesota statute provides that a “private nonpublic employer” may grant a preference to veterans in hiring and promotion.  See S.F. No. 1599.  A preference may also be granted to the spouses of certain disabled veterans or the surviving spouse of a deceased veteran.  The term “veteran” under the statute includes those who are honorably separated from the armed forces and who have met certain active duty criteria.  The bill was cited as one of a number of measures to expand opportunities for veterans and address an extremely high unemployment rate for veterans.

Minnesota law has long required public employers to grant preferences to veterans in hiring and promotion and, with some exceptions, prohibits public employers from removing veterans from their positions except for incompetency or misconduct after a hearing.  See Minn. Stat. § 197.455.  The new law is permissive rather than mandatory for private employers, although all employers should continue to keep in mind any other obligations they may have, including those to rehire veterans under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).

The new law addresses hiring and promotion, but not removal from a position.  It expressly states that granting a preference will not violate local and state human rights laws.  That language should protect employers from claims that granting a preference in hiring or promotion constitutes gender or age discrimination under the Minnesota Human Rights Act.  The new law does not, however, expressly override other claims, including those under federal equal employment opportunity laws.  Whether it will be interpreted as precluding those claims is unclear at this point.  In the past, purely voluntary preferences, have been subject to challenge under Title VII and certain other federal laws, while several challenges to preferences granted as required under state veteran’s preference statutes have been rejected.

Takeaway: Public and private employers should be aware of the statutory protections and opportunities existing for veterans, including USERRA and the existing Minnesota Veteran’s Preference statute.  Private employers considering granting a preference to veterans in line with the new law, Minn. Stat. §197.4551, should make sure that the grant is also in compliance with any other obligations they may have, including obligations under collective bargaining agreements and federal law.

Leave for Immediate Family Members of Military Personnel Injured or Killed in Active Service

Under Minnesota law, an employer with one or more employees must grant up to ten working days of a leave of absence without pay to an employee whose immediate family member has been injured or killed while engaged in active service as a member of the United States armed forces.  The amount of leave may be reduced by any period of paid leave provided by the employer.  The employee must provide as much notice as practicable of the employee’s intent to use this type of leave.  See Minn. Stat. § 181.947.

Leave to Attend Military Ceremonies

Under Minnesota law, any employer with one or more employees must grant an unpaid leave of absence for an employee to attend military ceremonies if the employee’s immediate family member has been ordered into active service in support of a war or other national emergency as a member of the United States armed forces.  The employer may limit the amount of leave to the actual time necessary for the employee to attend a send-off or homecoming ceremony for his or her family member, not to exceed one day’s duration in any calendar year.  See Minn. Stat. § 181.948.

Cat’s Paw Liability

Merriam-Webster’s Dictionary defines “cat’s paw” as “one used by another as a tool.”  In the legal sense, “cat’s paw liability” refers to the situation in which an employer is held liable for discrimination when it relies on a supervisor’s biased report and takes an adverse employment action against an employee.

The United States Supreme court affirmed this theory of liability in Staub v. Proctor Hospital, No. 09-400, 562 U.S. (2011), holding that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable” under the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). 

The plaintiff in the case, Vincent Staub, worked as an angiography technician for defendant Proctor Hospital until 2004, when he was terminated.  While employed by Proctor, Staub was a member of the United States Army Reserve, which required him to attend drill one weekend per month and to train full time for two to three weeks a year.  Both Janice Mulally, Staub’s immediate supervisor, and Michael Korenchuk, Mulally’s supervisor, were hostile to Staub’s military obligations.  In January 2004, Mulally issued Staub a “Corrective Action” disciplinary warning without justification.  Then in April 2004, Korenchuk informed Proctor’s Vice President of Human Resources, Linda Buck, that Staub had violated the Corrective Action, which again was false.  Buck relied on Korenchuk’s accusation and fired Staub.

Staub sued Proctor under USERRA, claiming that his discharge was motivated by hostility to his obligations as a military reservist.  He did not contend that Buck had any such hostility, but instead that Mulally and Korenchuk did, and that their actions influenced Buck’s ultimate decision.

Proctor argued that an employer cannot be held liable for discrimination unless the ultimate decisionmaker is motivated by discriminatory animus.  The Court rejected this argument and reasoned that so long as the earlier agent or supervisor intended, for discriminatory reasons, that the adverse action occur, the wrongful intent required for liability exists.