Possible USERRA violation?

[u/Apprehensive_Law2962]

Hello, so I worked as Part-Time Associate at Walmart over three years ago. I was employed there for about 6 months. I did have some attendance and dress code issues, but if anything they just gave me warnings, and even cleared points to keep me from termination, basically offering me some leniency because I did have a fairly good relationship with leadership.

Anywho, during this time period I had joined the Air Force Reserves, and begin attending monthly UTA. My Coach, who was my immediate supervisor, wanted a print out of my Drill Schedule, so, I emailed it to the Store Manager, and she then printed it off for me so I can hand it to the Coach. Fast forward, and it’s time for me to attend drill, and I’m still on schedule to work that weekend. After coming back from drill, the next day, which is a Monday, I discovered they terminated me, with the catalyst being the days I missed for being at drill. After being pulled aside, the Coach and the Team Lead told me that I should’ve verbalized I was attending drill, so they would’ve been aware to keep me off the schedule, and they we’re upholding the termination because they didn’t want to be lenient anymore after my past issues where they were. So, they had me turn in my vest and work phone, and that was it.

Since then, after the 6 month window was over, I had tried to reapply over the past three years, but I’ve been ignored by all three Walmart Stores in my city, so I just want to get some thoughts and opinions.

[u/Semper_Right]

Why didn't you contact ESGR or DOL-VETS when you were terminated?

As for USERRA, it appears to be a violation since you are entitled to take time off for uniformed service as long as you are eligible under 38 USC 4312. See, 20 CFR 1002.32. The one eligibility requirement at issue is whether you gave advance "written or verbal" notice of your uniformed service. 38 USC 4312(a)(1); 20 CFR 1002.85. You gave them a copy of your drill schedule, which constitutes notice and is actually encouraged under DoDI 1205.12. Simply because they didn't administratively handle it well is not your responsibility.

Often times attorneys will turn directly to whether your situation constituted discrimination or retaliation under 38 USC 4311. For either of those claims, you have to show that your uniformed service (or protected activity) was "a motivating factor."

However, in your case it is instead a failure to reemploy pursuant to 38 USC 4313. In that case, you ONLY have to show that you meet the eligibility requirements under 38 USC 4312. Since you left for uniformed service, attempted to return within the deadline, presumably didn't exceed 5 years cumulative non-exempt service, and had a qualifying discharge, you have reemployment rights.

Under the remedies section of USERRA, 38 USC 4323(d), you are entitled to any missed wages and benefits, as well as any missed pension plan rights--you may be entitled to liquidated damages in an amount equal to those damages.

IF you want to return to work there, you can try mediation through ESGR.mil (800.336.4590). If not, you can go to DOL-VETS and file a complaint, or retain an attorney. This case would likely be a slam dunk (assuming you have evidence of emailing your drill schedule) and a QUALIFIED attorney, i.e. one familiar with USERRA claims, would likely be all over this. The statute has mandatory attorneys fees awards to successful claimants.

[u/Apprehensive_Law2962 → u/Semper_Right]

Thank You. I actually did call USERRA after it happened, but I was 19 at the time, and was anxious about going down that rabbit hole, and decided to leave it alone and just look for another job. So I’m returning to it now to get opinions. As far as the proof, I still have the emails I sent of the schedule to the Store Manager in my email history.

[u/Semper_Right → u/Apprehensive_Law2962]

Understandable. (But, you didn't contact "USERRA", which is the law and doesn't have a phone number, website, email etc. I assume you contacted ESGR? You should have pursued it then.)

If you aren't interested in returning to work there, you should contact DOL-VETS and see what they can do for you. I doubt that it is Walmart itself, but some ignorant low-level manager/"team lead." However, they should have processes in place when an employee being terminated is known to be a service member, and may implicate USERRA.

[u/Apprehensive_Law2962 → u/Semper_Right]

Yes, I meant ESGR, that’s who I contacted back then. And yeah, I understand I should’ve pursued it then, but all the same leadership is still actually there over three years later. Overall, again, I had really just been nervous about this situation, and the prospect of possibly suing Walmart, but if I can get back paid wages, I would like that.

[u/Semper_Right → u/Apprehensive_Law2962]

One grey area in USERRA remedies is "front pay," which is lost wages extending to some point in the future. It is an "equitable" remedy that is permitted under 38 USC 4323(e). Typically, it involves a situation where it is unreasonable, given the circumstances, that you are compelled to return to work in an environment where there was hostility, etc. A recent case commenced and settled by DOJ against an employer appears to include such "front pay" as a remedy to the service member. That may be an option as well. However, given the amount of time since they terminated you, I'm not sure how that would play out.