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Servicemen and women, reservists and other individuals that perform uniform service for the United States enjoy very strong protections against adverse employment actions that are in any way related to their military service. The United States Supreme Court on March 1, 2011 issued its opinion in Staub v Proctor Hospital which strengthened the rights of servicemen and women, reservists and other individuals that perform uniform service for the United States Armed Forces.

In that case, Mr. Staub worked at a hospital but his employment was interrupted periodically because of his military service obligations. Mr. Staub’s immediate supervisors were critical of his military service obligations finding it to be disruptive to the hospital and his coworkers. The supervisors ultimately wrote Mr. Staub up; instituting a “corrective” employment action plan. His supervisors believed that Mr. Staub violated the “corrective” action plan and reported the alleged violation to Ms. Buck who was the individual at the hospital that had the authority to terminate Mr. Staub.

One of the most important provisions of the Uniformed Services Employment and Reemployment Rights Act (USERRA) states that “A person who is a member of . . . or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership.” 38 U. S. C. §4311(a).

The Uniformed Services Employment and Reemployment Rights Act (USERRA) goes on to provide that “An employer shall be considered to have engaged in actions prohibited . . . under subsection (a), if the person’s membership . . . is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership.”

The unique issue presented in Staub v Proctor Hospital, was whether the United States Supreme Court would acknowledge a “cat’s paw” theory of liability. “Cat’s Paw” liability is an argument made by the employee that the employer is liable for adverse employment action even though the person that fired the employee/military service person did not do so based upon the employee’s performance of his or her duties for the United States Armed Forces. In the Staub case it was the employee’s supervisors that had the anti-military bias and ultimately wrote him up with the intent of having him terminated from the hospital. The question the United States Supreme Court had to wrestle with was whether or not Mr. Staub’s supervisors’ actions were the “motivating factor” in Ms. Buck’s decision to terminate him.

At trial, a jury awarded Mr. Staub $57,640 in damages. The hospital appealed to the Seventh Circuit which reversed the damage award on the basis that the “cat’s paw” theory of liability was improper in that case. The Seventh Circuit stated that the only way a “cat’s paw” theory of liability would be successful is where the serviceman or woman was able to conclusively prove that the person that actually fired the employee essentially only relied upon the underlying supervisor’s adverse employment actions that were motivated by the employee having to fulfill his or her military obligations.

The United States Supreme Court reversed the Seventh Circuit’s opinion. The United States Supreme Court stated in this case where an employee is in the military, including active-duty or reserve, if a supervisor takes any adverse employment action against the employee that was motivated in part by the immediate supervisor feelings about the employee’s military obligations, that the employer can be held liable under USERRA.

USERRA provides military personnel very broad and expansive protections. As illustrated in this case, an employer cannot take any adverse employment action against a person in the military if that action is based upon military service or obligation. USERRA also requires employers to rehire military men and women who are returning from any military service including Iraq and Afghanistan. The requirement that an employer rehire returning military men or women depends on their length of service with the company prior to call up among other factors. USERRA requires employers to rehire returning military personnel into a position that they would have been in had they had not been called up for active military duty or reserve duty.

Significantly, USERRA does not have a statute of limitation. Further, USERRA does not require the adversely affected soldier or officer to pay a filing fee to initiate a lawsuit.

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