USERRA on Employers’ Radar
A DOJ lawsuit against Walmart and a 10th Circuit decision bring a military-focused antidiscrimination law front and center

by Doug Chartier

After celebrating its 25th anniversary in October, USERRA, the federal antidiscrimination law protecting military members, is drawing attention.

Colorado U.S. Attorney Jason Dunn announced in November that his office brought a civil complaint against Walmart Corp. on behalf of a Navy reservist, who says the company rejected her for a job because she required upcoming military leave.

The Justice Department brought the claim under the Uniformed Services Employment and Reemployment Rights Act, which protects employees from an adverse employment action based on their military status or required military leave.

More recently, federal appeals courts have issued new opinions that illuminate USERRA issues for employers, with the 10th Circuit Court of Appeals weighing in on a case involving the “cat’s paw” theory of liability.

Together, the developments shine alight on the antidiscrimination law even as employers see a steady decline in USERRA complaints.

Tracing its roots to World War II and updated in 1994, USERRA prohibits employers from taking adverse action against an employee based on their military service. The law comes up most often in cases involving members of the National Guard or reserve forces, who must request leave from work when they’re activated for duty or must train. USERRA applies to almost all U.S. employers regardless of size, and the DOJ and Department of Labor coordinate to enforce it.

The DOJ on Nov. 1 filed a lawsuit against Walmart on behalf of Lindsey Hunger, a Naval petty officer third class who claims one of its stores unlawfully denied her “initial employment” under USERRA. Hunger, who also teaches third grade, sought a seasonal job at a Grand Junction Walmart so she could have income over the summer in 2016, according to the complaint.

To read this and other complete articles featured in the Dec. 16, 2019 print edition of Law Week Colorado, copies are available for purchase online.