Amazon’s unpaid time off practices violate USERRA, class-action suit claims

Dive Brief:

Amazon allegedly discriminated against employees who served in the U.S. armed services or National Guard by assessing them unpaid time off when they took military leave and then firing them when their military leave caused a negative balance in their UTO accounts, a former Amazon employee claimed in a class-action lawsuit (Mahone v. Amazon.com, Inc., No. 22-cv-594 (W.D. Wash. 5/4/2022)).
The plaintiff was a member of the Alabama Army National Guard, the lawsuit stated. She worked for Amazon from mid-July to mid-October 2020. During this time, she regularly worked three 12-hour shifts a week, from Thursday afternoons to Sunday mornings. She also took various military leaves to fulfill her obligations with the National Guard. In mid-October 2020, the plaintiff was required to report for weekend drills as part of her military service. She timely notified Amazon and took military leave without pay starting that Thursday, according to the court filing. But on Sunday, her last day of the drills, she allegedly received an email from Amazon telling her she was fired because her UTO balance was 36 hours, constituting the three shifts she missed because of the drills.
The plaintiff sued Amazon for violating the Uniformed Services Employment and Reemployment Rights Act. Amazon allegedly violated the statute by denying employees in the uniformed services the right to retain their jobs while performing military duties. Amazon declined to provide a statement. "Given that this matter was recently filed, we're not in a position to comment on the case at this time," the company told HR Dive in an email exchange.

Dive Insight:

USERRA establishes certain rights and benefits for employees in civilian jobs who serve, have served or will serve in the U.S. armed forces, National Guard or Reserves, according to the U.S. Department of Labor (DOL) regulations. Generally, the statute prohibits employers from refusing to hire or denying reemployment, employment retention, promotion or any employment benefit to an employee or job applicant on the basis of that person's military service.

Virtually every employer, regardless of size, must comply with USERRA.

Employees who claim they've been discriminated against based on their military status, such as being fired because they took military leave, must show their military status was a "motivating factor" for the adverse action, the regulations state. Employers can defeat the claim by establishing that they would have taken the same action regardless of the employee's military status.

For example, in 2010, BWXT, a nuclear and technology company, defeated a fired manager's USERRA claim based on this defense. The manager was a member of the Naval Reserves. Prior to his termination, he had complained to BWXT about the way its payroll system accounted for his unpaid military leave. A few months later, the company learned he was using his work computer for Naval Reserve business. It eventually discovered more than 3,000 Navy-related documents he stored on the BWXT server.

After he was fired, he sued the company for violating USERRA. The 6th U.S. Circuit Court of Appeals upheld pretrial judgment for BWXT. It said the record showed that BWXT could reasonably believe he violated its computer use policy and also fired an employee not in military service because she, too, violated the policy.

As for paid versus unpaid leave, USERRA requires that employees taking military leave receive the same "rights and benefits" as employees receive for comparable, nonmilitary leave. Last year, the 7th Circuit held that the term "rights and benefits" includes paid leave, and employers must provide short-term paid leave to military reservists to the same extent provided for other comparable leaves of absence, such as jury duty. Since then, the 3rd Circuit has held the same.

With regard to reemployment, USERRA generally gives employees the right to return to their former jobs, or a comparable job, with the same benefits, following their military service if they meet certain criteria, including that they have not served more than five cumulative years in military service while working for that employer.

In 2019, the U.S. Department of Justice sued a North Carolina county for failing to reemploy a dean of students to an equivalent position when he returned from active duty. The DOJ claimed the county eliminated his job while he was away and offered to reemploy him as a physical education teacher, despite the availability of other administrative positions. DOJ settled the suit four months later when the county agreed to reinstate the employee as dean of students with back pay and pension benefits.

Keep in mind: USERRA requires employees to give advance notice of their need to take military leave. But employees don't need the employer's permission to take the leave, and they don't have to fill out a standardized form for HR, a DOL fact sheet explains. Employers also can't require an employee to adjust the timing of a military leave if they find the timing inconvenient.