In yesterday’s Advisor, Attorney Matthew Effland outlined the basic requirements of USERRA (Uniformed Services Employment and Reemployment Rights Act); today, two USERRA case studies plus an introduction to the guide many call the “FMLA Bible.”
Case Study 1: John Falsifies Paperwork
The facts:
John is a supervisory employee at a delivery company and is a longtime reservist and combat veteran. Here’s the scenario:
- John is told by a coworker that the company doesn’t like supervisors to serve in the Reserves.
- His boss sends an internal e-mail that says “John should not be serving when company needs him.”
- In March, John gives his boss notice of need for annual training in June and July —a total of 22 days.
- John is allowed to take leave, but he is given more than double the amount of work that the other supervisors get.
- The following year, John again gives notice of his need to go for reserve training.
- Shortly after, a subordinate claims John ordered him to falsify paperwork.
- An investigation ensues, and John admits he instructed falsification.
- He claims it was due to all the extra work and that others falsify, too.
- John is fired for falsification.
- John sues under USERRA saying that his termination was pretext for the company’s discrimination for his military leave.
- The company says, “He lied.”
Who wins?
The answer is that John wins, says Effland. In the actual case, Bobo v. United Parcel Service (2012), the real question was whether the action would have been taken if John had not been in the military reserves. The employer’s derogatory e-mail was a big influence on the decision in the case, Effland adds.
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Case Study 2: Mike’s 4-Month Wait
The facts:
Mike is a financial accountant who advises clients. He had a book of business of $9,000,000 (which is quite good for the industry). Here’s the scenario:
- Mike is called to duty after an attack on U.S. interests overseas.
- Once released, Mike requests reinstatement to his old position.
- The company takes more than 4 months to reinstate him.
- The company offered him 1/3 of his prior salary along with a list of cold-call prospects.
- Mike sues over the fact he was made to wait 4 months before starting up again.
- The company defends itself, saying, “We were busy, but we did offer him reemployment … eventually.”
- Mike also sues over the fact that pay is 1/3 of what he was making before, and that act was a “constructive” discharge.
- The company says that he’s paid at the same “rate,” but that rate is a commission, and since all his clients were transferred to others, his “rate” translates to less “earnings” (but he has a chance to recover…).
Who wins on the issue of the 4-month wait?
Mike wins. “Absent unusual circumstances” the employer gets 2 weeks to reemploy. This was pretty much a flat-out violation by the company, says Effland.
Who wins on the question of Mike’s low pay?
Mike wins again. In the actual case, Serricchio v. Wachovia Securities LLC (2011), the company claimed that the “same position” for a person with $9 million in accounts was a cold-call list and the opportunity to “rebuild his book.”
The court disagreed.
Effland’s Tips
- Develop a process for returning vets.
- Play close attention to the escalator provision.
- Don’t get cute with definitions.
- Return the employee to a position as close as possible to the position the employee left.
And, of course, on top of USERRA leave hassles, there are FMLA military leave hassles.
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Here’s an idea: When in doubt about USERRA issues, just do the moral thing. Chances are, you won’t violate the law.
Please note that your best resource for USERRA questions is ESGR.gov a department of defense organization. They are the experts on USERRA and have staff in place in all 50 states to assist employers with compliance and vets with issues.