You Be the Judge on USERRA Cases—Who Wins?

USERRA 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 the 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 than the other supervisors.
• 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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USERRA 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 million (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 one-third 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 one-third of what he was making before, and that 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 dozens of other challenges. In HR, if it’s not one thing, it’s another. Like FMLA intermittent leave, overtime hassles, ADA accommodation, and then on top of that, whatever the agencies and courts throw in your way.

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E-mail review. All e-mail is subject to review by management. Your use of the e-mail system grants consent to the review of any of the messages to or from you in the system in printed form or in any other medium.

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