Section 18 Proof

• Library: Employer-Employee Law 2008

USERRA’s discrimination/retaliation section uses the motivating factor test, i.e., if the plaintiff proves that the plaintiff’s service
was a motivating factor in the employer’s action, the action
is unlawful unless the employer proves that it would have taken
the same action in the absence of such service. 38 U.S.C. § 4311(c). See Clegg v. Ark. Dep’t of Corr., 496 F.3d 922, 930 (8^th Cir. 2007) (citing Velázquez-García v. Horizon Lines of P.R., Inc., 473 F.3d 11, 16–17 (1^st Cir. 2007)). Velázquez-García provides the history of USERRA’s “motivating factor” test, explaining that USERRA was passed in response to...