Last week in Middleton v. City of Chicago, the Seventh Circuit Court of Appeals concluded that 2008 amendments to the Uniformed Services Employment and Reemployment Rights Act (USERRA) do not apply retroactively.  The lawsuit was brought in 2007 by a veteran who alleged that he was denied employment by the City in 1994, thirteen years earlier.  Chicago sought dismissal of the suit on the grounds that it was not filed within the general four year statute of limitations applicable to federal claims.

The Seventh Circuit agreed, affirming dismissal of the claim.  It rejected the plaintiff’s arguments that an October 10, 2008 amendment to USERRA that removes the statute of limitations applies retroactively to actions that arose before that date.  The court cited the lack of Congressional intent to provide retroactive application of the new law.

This decision begs the question of how employers address future USERRA claims that arise after the effective date of this legislation.  According to the plain terms of the law, there is no statute of limitations whatsoever for USERRA claims brought against employers.  An employee could file suit decades after the alleged wrongful act, well after employment records are destroyed in the normal course of business, and after employees with knowledge of the matter have departed or retired.

In some circumstances, employers may be able to use equitable defenses against claims alleging very old behavior.  However, the plain language of USERRA and its intent to provide maximum protection to service members may weigh against successful use of equitable defenses.  Employers may not know that an applicant is a service veteran, and it would be difficult to try and construct permanent records of employment decisions in the event of a possible claim in the distant future.

While Congress’ intent to protect service members’ jobs is laudable, it may not have given sufficient thought to the practical effects of requiring employers to defend and justify very old employment decisions.