3 min read Discrimination, Staffing

USERRA Presents Staffing Agency Challenges

​The Uniformed Services Employment and Reemployment Rights Act (USERRA) is a federal law that protects members of the military, including the Reserves, and requires employers to return them to their civilian jobs following a period of uniformed service. For staffing agencies, USERRA presents unique challenges, because their assigned employees' jobs are, by definition, temporary in nature. Yet USERRA contains no staffing agency exemption (or any other exemption, for that matter), and staffing agencies have the same obligations as a full-time employer. But what if the worker's last client assignment no longer exists?

A case just filed in federal court in Louisiana illustrates the dilemma. According to the Complaint (attached below), TRS Staffing Solutions assigned Crystal Hayes to work as a warehouse material coordinator at CF Industries. Hayes was a member of the U.S. Army Reserve and was called to active duty. When her deployment neared its end, she contacted TRS to inform it of her intent to return to work with CF. TRS contacted CF to coordinate Plaintiff’s return, but CF's human resource department advised that CF no longer had any positions in its warehouse.

TRS apparently failed or was unable to supply Hayes with an equivalent position elsewhere, and she sued both CF and TRS as co-employers (which they are for purposes of discrimination laws). The Complaint does a good job of listing an employer's duties under USERRA:

  1. Section 4311 of USERRA provides, in relevant part, that a person “who is a member of, … performs, has performed, … or has an obligation to perform service in a uniformed service shall not be denied … any benefit of employment by an employer on the basis of that membership, … performance of service, or obligation.”
  2. Section 4312 of USERRA provides, in relevant part, that “any person whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits.”
  3. Section 4313 of USERRA (further codified by 20 C.F.R. § 1002.191) provides that an employee is entitled to be reemployed in a position that reflects with reasonable certainty the pay, benefits, seniority, and other job perquisites, that he or she would have attained if not for the period of service.
  4. Section 4316 of USERRA provides that any period of absence from employment due to or necessitated by uniformed service is not considered a break in employment, so an employee absent due to military duty must be treated as though they were continuously employed.
  5. Section 4316 further provides that a person who is reemployed “is entitled to the seniority and other rights and benefits determined by seniority that the person had on the date of the commencement of service in the uniformed services plus the additional seniority and rights and benefits that such person would have attained if the person had remained continuously employed.”
  6. “The employer must determine the seniority rights, status, and rate of pay as though the employee had been continuously employed during the period of service.” 20 C.F.R. § 1002.193.
  7. CF knowingly and willfully violated USERRA by, among other ways, failing to reemploy Ms. Haynes with the pay, benefits, seniority, and other job perquisites, that she would have attained if not for her period of service.
  8. CF further knowingly and willfully violated USERRA by, among other ways, denying Ms. Haynes employment benefits and reemployment “on the basis of” her “obligation to perform service in a uniformed service.”
  9. TRS knowingly and willfully violated USERRA by, among other ways, failing to reemploy Ms. Haynes in a position of like seniority, status, and pay after learning that CF no longer had any positions at its warehouse.
  10. TRS further knowingly and willfully violated USERRA by, among other ways, denying Ms. Haynes employment benefits and reemployment “on the basis of” her “obligation to perform service in a uniformed service.”

Reducing risk

When this happens, the staffing firm should first try to persuade the client to find or make an equivalent position for the worker, explaining that the client is not immune from liability just because it used a staffing firm (hopefully, the agency did not sign a client contract requiring that the agency provide indemnity for all worker lawsuits). The Agency should offer to do this at little or no markup. Although the client is not likely to create a job in most circumstances, advocating for the worker will strengthen the agency's position in a lawsuit. The next obvious step is to diligently search for an equivalent assignment. At the end of day any assignment, even a non-equivalent one, is better than none. This is because USERRA damages consist of the lost wages arising from the non-reinstatement, and these damages are doubled for willful violations. A strong job search will diminish, if not eliminate, the chances that willfulness will be found. Also, wages that are earned will offset any claimed damages.

Haynes v. CF Industries, Inc. et al
USERRA
Haynes v. CF Industries, Inc. et al, USERRA.pdf
145 KB
download-circle

Published by:

You might also like...

Nov
12

Staffing Firm Accused of Lactation Discrimination

This is timely. Recently we provided a comprehensive update on pregnancy discrimination laws in the US, including the federal PUMP Act, requiring employers to provide accommodations for lactating mothers: How to Trigger a Pregnancy Discrimination LawsuitEmployers should understand that pregnant workers arguably enjoy more workplace legal protections than any class
1 min read
Aug
06
Courts Apply New Title VII Standard

Courts Apply New Title VII Standard

For the past 60 years, to assert a valid employment discrimination claim under Title VII of the Civil Rights Act of 1964, an employee had to allege a “materially significant disadvantage” resulting from an employer's adverse actions.
7 min read
Apr
23

U. S. Supreme Court Broadens the Basis for Discrimination Claims

Surprising ruling means that employers can expect more lawsuits The most common legal claims brought against staffing firms (and employers in general) are lawsuits brought under Title VII of the Civil Rights Act of 1964, as amended, and its state and local variants. Last week, the U.S. Supreme Court
2 min read
Apr
11

Aerotek Wins the Right to Arbitrate- But Loses the Arbitrations

In a landmark 2021 decision in favor of staffing giant Aerotek (and beneficial to employers in general), the Texas Supreme Court ruled that former Aerotek temporary employees could not invalidate their electronic signatures on arbitration agreements merely by denying that they signed them. The ruling in this employment discrimination case
1 min read
Mar
28

Justice Department Repeatedly Punishing Staffing Firms for Job Posting Violations

It's easy pickings for DOJ regulators There is a right way and a wrong way to address immigration status in a U.S. job posting. The DOJ website explains here. It's pretty simple: Right way: "Must be authorized to work in the U.S."
5 min read

Member discussion