Last Friday was Veterans Day.  We are proud to have represented both veterans and current service members in employment litigation.  In this article, we are talking about workplace protections when individuals return from military service and/or have been disabled due to military service.  Also, if you haven't checked out our TalkLex podcast yet, Friday's episode (first time on video!) was on veterans' workplace rights (focusing on USERRA and the ADA).  

Veterans (and service members) are protected in the private workplace under two major federal statutes: the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) – for reemployment, discrimination and retaliation – and the Americans with Disabilities Act (“ADA”) – for disabilities. 

In New York, both the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”) protect veterans and service members, the former under the protected status “military status” and the latter under “uniformed services”, as well as under their disability protections.  The state Workers' Compensation Law also protects “injured veterans” from discrimination, and the Military Law addresses reemployment.

What is USERRA?

USERRA is a federal statute that applies to all service members regardless of whether or not they are disabled.  It prohibits discrimination based upon military service and requires employers to save individuals' jobs when they are engaged in military service, including training (what the statute calls “reemployment”).  As discussed further below, it has not been definitively decided if USERRA covers a claim for disability discrimination in addition to and as distinguished from a claim for military service discrimination.  But USERRA does provide other protections to disabled veterans.  For example, if a covered employee is disabled, USERRA requires employers to make reasonable efforts to accommodate the disability.  This is similar to the requirements of the ADA, discussed further below.  USERRA goes further than the ADA, however, and, if a disabled veteran is unable to return to his previous position because of a disability, USERRA requires the employer to assist the veteran in becoming qualified for another position.  USERRA also prohibits retaliation for opposing violations of the statute. 

USERRA provides a private right of action for individuals who have been aggrieved by violations of the statute.  In layman's terms: you can sue.  Typically, a USERRA case would be commenced in the federal district court where the employee resides and is employed.  The statute is unique in that it does not contain a statute of limitations, meaning that there is no time deadline within which to file your lawsuit.  Generally, employment claims are subject to very strict time deadlines.  USERRA also provides for liquidated damages which is similar to a penalty where, if he or she prevails, the employee is awarded an additional sum equal to his or her lost wages. 

The Supreme Court had a USERRA case in its June 2022 term, and held that the doctrine of sovereign immunity does not prevent an employee from suing his or her State employer under USERRA.  In layman's terms? Sovereign immunity is the concept that you can't sue individual states in federal court.  But when there is a waiver or it's the intention of a statute to override that, you can.  This can lead to inconsistencies in employment law; for example, you can sue your state employer for damages under Title VII and the FMLA (and now USERRA), but not under the Americans with Disabilities Act or the ADEA (age).  So in this case, the Supreme Court said sovereign immunity does not prevent a suit against the state so, if you work for a state agency (the employee in that case was a Texas state trooper), and your employer discriminates against you under USERRA, you can sue. 

What is the ADA?

The ADA is the federal statute protecting individuals with disabilities from workplace discrimination and requires the provision of reasonable accommodations to disabled workers.  As noted above, it has not been definitively decided if USERRA encompasses a claim for disability discrimination as opposed to discrimination based upon the military service itself.  Therefore, if a veteran or service member has been discriminated against because of a disability, a lawsuit may be more appropriately fashioned as an ADA lawsuit as opposed to a USERRA lawsuit.  Alternatively, both statutes may be invoked.

In addition to prohibiting discrimination because of a disability, the ADA requires an employer to reasonably accommodate a disability. Reasonable accommodations are those which allow the employee to continue performing the essential functions of his or her position and which do not pose an undue hardship on the employer.  Reasonable accommodations can include things like a brief medical leave of absence, light duty or use of necessary equipment like a chair or hearing aid.  Sometimes a reasonable accommodation may include transfer to a vacant position, but not always.  The ADA also does not typically require a position to be created for the disabled employee.  This is where USERRA goes further.  Accordingly, if a service member has been denied an accommodation or a new position, there may be claims under both statutes.  The ADA also prohibits retaliation for opposing violations of the law, as well as retaliation for requesting a reasonable accommodation. 

Unlike USERRA's lack of a statute of limitations, the ADA has a strict requirement that a claim be filed with the EEOC within 300 days of the adverse employment action complained of (this can be 180 days depending on what state you live in, but is 300 in NY).  The adverse employment action can be the date a request for an accommodation was denied or some other adverse action alleged to be discriminatory like a termination or a demotion.  The EEOC will then have 180 days to investigate the claim.  After that time period has passed, if an employee wishes to pursue a lawsuit, he or she may request a Notice of Right to Sue.  The EEOC will also issue that Notice in the event it dismisses the employee's claim either because it does not have sufficient information to make a determination or if it finds that there is no probable cause to find that discrimination occurred.  Even if the EEOC finds against the employee, he or she may still file their claim in federal court after receiving this Notice.

New York Laws 

The state and city Human Rights Laws operate like a combination of several federal laws like Title VII (the discrimination statute that applies to race, sex, national origin, religion, etc.), USERRA (the discrimination part of it, as opposed to reemployment), and the ADA.  They prohibit both discrimination and retaliation, as well as require reasonable accommodations for disabilities.  Both statutes allow you to sue without first going to an administrative agency, but you can file a complaint with the NYS Division of Human Rights or the NYC Commission on Human Rights if you want to. (There are risks if you lose there, though, so you should consult an attorney about your strategy).

The NY Workers' Compensation Law also protects "injured veterans" from discrimination in employment.  On its face, this statute goes farther than the disability laws because an injury is not always a "disability."  There's not a lot of caselaw on this provision, but it's a law that's not commonly known and we've included in our USERRA and disability cases.  

This is not an exhaustive list of protections for veterans or veterans with disabilities.  In addition to the New York State laws, the federal Family and Medical Leave Act also protects individuals with serious health conditions and family members of service members on active military deployment as well as service members who have been injured.  You can check out the Department of Labor's guidance on Military Family Leave here. 

If you believe that you have been discriminated against, denied reemployment, or denied an accommodation, give us a call. We are happy to see if we can help.