A Civic Duty or a Precursor to Lawsuit: Issues Involving Employment and Re-employment of Returning Veterans

By Larry Bartel, Esq of Marshall, Dennehey, Warner, Coleman & Goggin

Key Points:

USERRA and PMAA protect the employment and reemployment rights of members of our uniformed military.
The court’s recognition of a common law claim for "failure to hire," when against public policy, allows for the potential recovery of compensatory and punitive damages.
Employers should be aware of USERRA’s requirements and must strike a delicate balance when questioning members of the uniformed military about their military experience and obligations.

As the armed forces occupation of Iraq and Afghanistan are coming to an end, a great number of our military heroes will be returning to the States and entering or re-entering the workforce. The return of our men and women of the armed forces will leave employers in a precarious situation. A combination of factors, great and small, signals potential pitfalls for employers throughout the country. The men and women of our armed forces will be returning to a struggling economy and will be joining the numerous unemployed Americans in the search for employment.

Many of the returning military will be seeking the positions of employment they left behind when they were deployed. Other military will seek new employment with different employers. As such, it is important for employers to understand the protections offered to our military under the Federal Uniformed Service Employment and Reemployment Rights Act (USERRA), the Pennsylvania Military Affairs Act (PMAA) and the recently recognized Pennsylvania Common Law Claim of "Failure to Hire."
Returning Military Rights Provided by USERRA
USERRA prohibits an employer from denying initial employment, reemployment, retention in employment, promotion or any other benefit of employment on the basis of the employee’s membership, application of membership, performance of service, application of service or military obligation. A uninformed officer who has been dishonorably discharged or discharged for bad conduct is not protected by USERRA.
An employer, for the purpose of USERRA, includes any person, institution, organization or other entity that pays salary or wages for work performed or that has control over employment. Employer is an all-inclusive list that includes the federal government, states including their political subdivisions (counties, townships and other local municipalities), United States territories and any successor of interest in an institution, organization and/or other entity regardless of their size and/or number of employers. In addition, USERRA applies to employers who deny initial employment because of an applicant’s membership in a branch of the uniformed service.
Generally, USERRA protects the reemployment rights of individuals in the uniformed service when the individual provides advance written or verbal notice to their employer, the cumulative length of absence from a position of employment with that employer does not exceed five years, and the individual notifies the employer of his intent to return to a position of employment with such employer. USERRA entitles a plaintiff to seek lost wages and benefits, possible liquidated damages and reasonable attorney fees, expert witness fees and other litigation expenses. USERRA does not allow for PUNITIVE damages.
Returning Military Rights Provided by PMAA
Pennsylvania employers must comply with USERRA and the PMAA. PMAA has less stringent requirements and does not require a uniformed officer to provide notice prior to taking leave and does not include the five-year cumulative leave caveat. Under the PMAA, an employer must reemploy the individual uniformed officer with like seniority, status and pay, or the nearest approximation to his prior seniority, unless the circumstances have changed as to make it impossible or unreasonable to do so. Although the PMAA has less stringent requirements than USERRA, the PMAA does not provide any economic recovery or relief.
Pennsylvania’s Recognition of Common Law Claim for "Failure to Hire"
In a case of first impression, the United States District Court for the Western District of Pennsylvania has expanded the reach of the long-recognized claim for "wrongful discharge," which is a public policy exception to the at-will doctrine. In Hamovitz v. Santa Barbara Applied Research, et al., 2010 U.S. Dist. Lexis 110937, (W.D. Pa. Oct. 19, 2010), the court for the first time recognized a common law claim for "Failure to Hire" in violation of public policy. The court reasoned that the PMAA unequivocally establishes the clear and concise public policy of the Commonwealth of Pennsylvania which prohibits discriminating against employees or prospective employees on account of their military obligations. In support of its reasoning, the court pointed to the specific language of the PMAA, which provides: "It is unlawful for any private employer to refuse to hire or employ an individual. . . because of his membership" in the armed forces.
In addition, the court in Hamovitz held that USERRA does not provide an exclusive remedy for discrimination based on membership in the uniformed service and does not preempt Pennsylvania tort law. In support of its holding, the court pointed to the specific language of USERRA which states, "Nothing in [USERRA] shall supersede, nullify, or diminish any federal or State law (including local law or ordinance). . . that establishes a right or benefit that is more beneficial to, or is in addition to, a right or benefit provided for such person in USERRA." Thus, USSERA is not an exclusive remedy, and a plaintiff may seek claims under Pennsylvania state law concurrently with their claims under USERRA.
As neither USERRA nor PMAA allow a plaintiff to seek noneconomic damages and/or punitive damages, the court’s recognition of the common law claim for "failure to hire" would allow a plaintiff to recover additional tort damages, including compensatory and/or punitive damages.
What You Need to Know as Employers
All employers should be aware of possible issues when reviewing and/or interviewing potential employees who are members of the uniformed services. Generally, an individual’s affiliation with a branch of our armed forces is viewed in a positive light. However, employers must tread lightly when speaking about the candidate’s military background. An employer should avoid questions that relate to a candidate’s future obligations as a uniformed officer.
As the courts have ruled, USERRA is not the exclusive remedy for discrimination based upon membership in the uniformed services. All employers should be aware of the potential for possible exposure to compensatory and/or punitive damages awards available under the common claim for "failure to hire."
*Larry Bartel, Esq. works in the King of Prussia, Pennsylvania, office of Marshall, Dennehey, Warner, Coleman & Goggin and can be reached at 610.354.8493, or ljbartel@mdwcg.com.
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