Employer ‘willfully’ violated USERRA, Eighth Circuit affirms | The American Association For Justice Archive

Employer ‘willfully’ violated USERRA, Eighth Circuit affirms

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August 23, 2018 - Mandy Brown


The Eighth Circuit has affirmed a decision in favor of a plaintiff who alleged that her employer violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) when it failed to promptly reemploy her after she returned from mandatory military training. The court also affirmed the district court’s liquidated damages award, ruling that the lower court's finding that the employer “willfully violated” USERRA was not clearly erroneous. (Mace v. Willis, 2018 WL 3340550 (8th Cir. July 26, 2018).)

In April 2016, Kieshia Mace began working at Kickbox Dakota, a gym in Sioux Falls, S.D. She was not guaranteed any hours, and the gym had complete discretion over whether to assign her shifts. When hired, she told the gym owner that she was a National Guard member and would be required to attend training from July 15 to Aug. 8 of that year. At the beginning of August, the owner removed Mace’s name from the mobile app used each month to schedule employee hours. Shortly thereafter, Kickbox hired a new employee with a lower hourly wage than Mace’s to fill available hours.

On Aug. 8, Mace returned from training and was unable to sign into the gym employee app. She texted the owner to ask whether she was supposed to work that day. When he failed to respond, she followed up by phone and left a voicemail. On Aug. 10, Kickbox hired a second new employee, whose hourly wage was also lower than Mace’s. That same day, the owner left Mace a voicemail, informing her that they had taken her off the schedule and hired new employees. Mace called the gym manager, who confirmed that she had been replaced. Mace informed the manager that she believed that this violated federal law and that she would consult her commanding officer. In late August, a gym employee quit, and the owner sent Mace a letter offering to put her back on the schedule; she did not respond. Mace sued the gym, the gym owner, and the manager, seeking lost wages under USERRA.

The district court ruled in her favor, noting that USERRA requires employers to “promptly reemploy ” servicemembers returning from military service unless the employee fails to provide proper advance notice of the leave or the employer’s circumstances have changed so that reemployment is “impossible or unreasonable.” Finding that neither of these exceptions applied, the court ruled that the defendants had violated USERRA and done so willfully, refusing to reemploy Mace even though they knew—and were informed by her—that returning servicemembers enjoyed reemployment rights. The court awarded Mace liquidated damages equal to her lost wages, as authorized under USERRA for willful violations of the statute, as well as attorney fees, expert witness costs, and litigation expenses.

On appeal, the defendants argued that they had not violated USERRA because Mace was in the same position—not guaranteed any shifts at the gym—before and after the mandatory training. The Eighth Circuit rejected this argument, noting that Mace was removed from the pool of eligible workers, denying her the opportunity to work after returning from leave. The court ruled that USERRA protected Mace, noting that the statute’s “implementing regulations make clear that even temporary, probationary, and seasonal employees enjoy USERRA protections.” This requirement reflects “Congress’s determination that, in the main, this burden [on employers] is justified to ensure that members of the [A]rmed [F]orces do not lose their livelihoods because of their service to the nation,” the court wrote. The court also agreed that the facts supported the district court’s liquidated damages award and the court’s determination that the defendants had willfully violated USERRA; it noted the defendants showed a “reckless disregard for whether [their] conduct was prohibited by the Act.”

“We were pleased with the Eighth Circuit’s opinion, which vindicates the reemployment rights of workers who step away from their jobs to serve their country,” said Sioux Falls, S.D., attorney Alex Hagen, who represents Mace. “Military members face enough uncertainty as it is—the last thing they need to be concerned about is whether they will have a job when they return. In a perfect world, employers would abide by USERRA on principle. But in the real world, employers cut corners and act out of expediency. It takes people like Ms. Mace to stand up and hold them accountable.”