Congress passed the Uniformed Services Employment and Reemployment Rights Act (USERRA) to protect employees who also are past or present members of the uniformed services, such as members of the military reserves. The statute requires private employers to promptly reemploy individuals who have taken time away from their work to serve in the military.
What “promptly” means was the subject of a recent decision by the Richmond-based U.S. 4th Circuit Court of Appeals, whose decisions apply to employers in Virginia, Maryland, West Virginia, and North and South Carolina.
Thomas Harwood, a U.S. Air Force Reserve member, was a civilian pilot for American Airlines. After his reserve Air Force military service, he sought to return to his airline job. Because of a medical condition he had developed, however, he lacked the necessary Federal Aviation Administration (FAA) clearance to fly. He applied to the FAA for a waiver, but the airline refused to return him as a pilot until the waiver was approved.
About 2 months after Harwood was to have returned to work, American identified an alternative position at the same pay rate as an active pilot. The company, however, took 6 weeks to offer him the alternate job as well as an extension of his military leave while he continued to seek the waiver.
Harwood declined both options and spent a few additional months on active duty with the Air Force. About five months after his original deployment ended, he accepted the alternative position before subsequently obtaining a waiver from the FAA clearing him to fly. The day after he received the waiver, American reassigned him to a pilot’s role.
Harwood wasn’t satisfied, however, and filed a federal lawsuit, claiming American had violated USERRA by, among other things, failing to return him promptly to his pilot position. The U.S. District Court for the Eastern District of Virginia found in his favor on the claim and awarded him $50,000 in damages. Both parties appealed the district court’s ruling to the 4th Circuit.
The 4th Circuit affirmed the district court’s ruling, finding American had failed to discharge its duty to return Harwood to work promptly. Instead, the airline had delayed rehiring him by waiting more than 2 months (after learning he couldn’t return to his pilot position) to identify an alternative position he could perform. Then, the employer waited 6 weeks to offer him the position. Harwood v. American Airlines, Inc., No. 18-2033.
Bottom Line: Don’t Delay
When you’re dealing with an employee who is ready to return to work from military service, the law requires immediate action to add the individual back to the employment rolls. Even if an unexpected medical condition or other event prevents you from returning him to his former position at once, you should immediately offer an equivalent job in terms of pay, seniority, and so on. Don’t dawdle—unless you want to be the recipient of a USERRA lawsuit.
Co-authored by: Michael E. Barnsback and Ian McDowell, University of Richmond Law School