Alabama Employment Law Report : Alabama Employment Lawyer & Attorney : Daniel J. Burnick : Sirote & Permutt Law Firm

Sam Friedman, one of the firm's bright young associates, wrote the following summary on the case of Dees v. Hyundai Motor Manufacturing Alabama, LLC decided by the 11th Circuit recently.  The court found in favor of Hyundai and against Dees on a USERRA claim.  

Jerry Leon Dees sued his employer, Hyundai Motor Manufacturing Alabama, LLC, for employment discrimination under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Dees claimed Hyundai discriminated against him and harassed him because of his membership in the National Guard, and he alleged that he was eventually fired because of his National Guard membership. The federal district court ruled in Hyundai's favor, and Dees appealed to the Eleventh Circuit Court of Appeals.

The USERRA provides that an employer cannot discriminate against an employee because of his or her military membership. To prove discrimination under the USERRA, an employee must show that his or her military membership was a motivating factor in the employer's adverse employment decision. An employer may rebut the employee by proving that legitimate reasons, standing alone, would have led to the same adverse employment action. Additionally, under the "cat's paw theory", an employer can be held liable for discrimination even if a party with no decision-making authority makes a discriminatory recommendation and the employer acts on that recommendation without conducting an independent investigation.

In reviewing Dees' appeal, the Eleventh Circuit held that the district court correctly ruled in favor of Hyundai on the employment discrimination claim. The court noted that Dees failed to present any evidence proving that his membership in the National Guard led to his termination. Hyundai knew of Dees' service when he was originally hired and never disciplined him for missing work for training. The court similarly rejected Dees' cat's paw theory argument.

The Eleventh Circuit also held that Dees did not have standing to bring a harassment claim. In order to establish standing, a plaintiff must show that (i) he or she suffered injury as a result of a violation of a legal right, (ii) the defendant's actions caused the injury, and (iii) a favorable outcome in court will remedy the injury. The court found that Dees did not have an available remedy because his employment had been terminated for non-discriminatory reasons.

Therefore, the Eleventh Circuit affirmed the district court's decision in favor of Hyundai.

Practice pointer.  Any time an employee returns from military service, the safeguards of USERRA must be followed.  If so, it is possible for an employer to obtain a favorable decision in the event an employee pursues a claim against it.  However, if the safeguards are not followed, monetary liability, as well as bad publicity, may follow. 

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Beginning today, January 16, 2009, the Department of Labor's regulations concerning the FMLA are now in effect.  Based on my review of the final regulations, I believe that the following 3 components of the FMLA will have the most impact on employers.

1.  Military caregiver leave and qualifying exigency leave.  Eligible employees who are family members of covered servicemembers are now able to take up to 26 work weeks of leave in a single 12 month period to care for a covered servicemember with a serious illness or injury suffered in the line of duty while on actiive duty.  For a more detailed discussion of this change, please see my blog entry of December 4, 2008.

2.  Employer notice obligations and new forms.  Employers are now required to give employees general notice of the FMLA, through a poster and either an employee handbook or upon hire, an eligibility notice, notice of rights and responsibilities, and a designation notice.  There are new forms published by DOL  and available on the  DOL website.

3.  Adoption of the Ragsdale decision.  The United States Supreme Court decided the case of Ragsdale v. Wolverine World Wide Inc, which found that an employer does not need to provide additional FMLA leave as a penalty for failure to appropriately designate FMLA leave.  The final rule, although removing the prior categorical penalty provisions, does find that when an employee suffers individualized harm due to the failure to properly follow the notification rules, the employer may be liable.

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USERRA IN TODAY'S WORKPLACE

The Uniformed Services Employment and Reemployment Rights Act of 1994 applies to all public and private employers, regardless of the number of employees. Members of the uniformed services who are temporarily away from their jobs due to voluntary or involuntary service are covered (temporary employees are not covered). Returning service members are entitled to job protection and there is an escalator provision for pay and benefits.

A recent story by CBS's 60 Minutes demonstrates how returning service members can have their USERRA rights taken away. Joanne Merritt, a nurse and Army Reservist, was deployed for 2 years to care for wounded soldiers. Upon her return, she was advised that she had been away too long and she no longer had a job. Her employer: the VA Medical Center in Augusta, Ga.. After filing a complaint with the VA, her job was restored together with back pay and leave.

Practice Pointer.  There are numerous complaints and lawsuits being filed on a regular basis as the result of alleged violations of USERRA by servicemembers returning from duty. It can be costly to an employer to have one of these suits filed against it, not only financially, but also as to the time it takes to investigate and defend these suits.  The potential for negative publicity is something to be considered:  no employer wants to be mentioned in the local newspaper, TV station or in a 60 Minutes story in a negative manner.

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