USERRA amended to allow suits for hostile work environment
Congress has amended and the President has signed a bill with dozens of provisions to help veterans be retrained, hired, etc. Tucked into the bill is an amendment to USERRA clarifying the definition of a “benefit” in USERRA. The bill adds the italicized words so that it now reads as follows:
The term “benefit”, “benefit of employment”, or “rights and benefits” means the terms, conditions, or privileges of employment, including any advantage, profit, privilege, gain, status, account, or interest (including wages or salary for work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice and includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or location of employment.
VOW to Hire Heroes Act of 2011, Pub.L. 112-56 § 251, Nov. 21, 2011.
The genesis of the amendment can be traced to a recommendation from the Department of Labor for a “clarification” of the law because of inconsistent court decisions holding both that a cause of action for hostile work environment under USERRA did and did not exist. The Department’s report to Congress stated,
DoL considers it a violation of USERRA for an employer to cause or permit workplace harassment, the creation of a hostile working environment, or to fail to take prompt and effective action to correct harassing conduct because of an individual’s membership in the uniformed service or uniformed service obligations. Although the Department believes that the statute currently supports this reading, in light of the risk of contrary interpretations by the courts, the Department recommends that Congress consider clarifying that USERRA prohibits workplace harassment or the creation of a hostile working environment.
The practical effect of the amendment is to overturn the United States Court of Appeals for the Fifth Circuit’s decision in Carder v. Continental Airlines, Inc., 636 F.3d 172 (March 22, 2011), where the court held, on an issue of first impression, that service members could not sue their employers under USERRA for a hostile work environment,