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USERRA Note: Notice of Intent to Take Military Duty Leave Sufficient to Provide USERRA Job Protections

By Marti J. Cardi, Chief Compliance Officer, Reed Group

Employers are familiar with the Uniformed Services Employment and Reemployment Rights Act (USERRA), which provides American servicemembers in civilian jobs with protection from discrimination on the basis of military service and job restoration rights following service.

A recent opinion from the First Circuit Court of Appeals, arising from a case in Puerto Rico, makes it clear that the protections under USERRA arise as soon as an employer is notified of the potential for an employee to be called to active duty. In Vega-Colón V. Wyeth Pharmaceuticals, Vega, a member of the U.S. Army Reserve, commenced employment with Wyeth in 2002. In 2006, while inactive and before receiving formal orders, Vega notified his Wyeth supervisor that he had accepted a promotion to captain on the condition that he return to active duty at some as-yet unspecified date.

Vega claims that Wyeth then took various negative employment actions against him because of his intent to serve (including a poor evaluation, extension of a performance improvement plan, denial of a promotion). Wyeth argued that Vega was not entitled to USERRA protections because he had not yet returned to active duty.

The First Circuit rejected this argument: “[It] is only logical that USERRA coverage would be triggered at the point in time in which an employer has information about an employee on which it could base discriminatory treatment. Here Vega expressed a definite intent to return to active duty in the near future. To deny an employee who has expressed such a definite intention the protection of USERRA until his literal application for service is signed and delivered would be contrary to the stated purposes of USERRA.”

Lesson for Employers:
The purpose of USERRA is “to encourage non-career military service, minimize disruption based on this service, and prevent discrimination against service members.” 38 U.S.C. § 4301. Be sure your supervisors are trained not to discriminate against active or inactive military members, and understand your obligation to reinstate your employee upon return from service.

Reed Group manages military leaves of absence protected by USERRA and similar state laws. Contact us if your organization is interested in learning more about USERRA or about Reed Group’s services. More information about USERRA.

Vega-Colón V. Wyeth Pharmaceuticals (1st Cir. Oct 28, 2010)


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