The district court in Reyes v. Goya of Puerto Rico, Inc. held that the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) does not  per se preempt state tort law claims.  In reaching this result, the court clarified that the preemption provision under USERRA applies only where the second claim either “hinges upon the same facts underlying [the] USERRA claim” or “explicitly reduces, limits, or eliminates…[a] right or benefit provided by USERRA.”  The case was initiated by Francisco Reyes who filed a complaint against his employer, Goya of Puerto Rico (“Goya”) for violations of USERRA and for emotional distress under the Puerto Rican Civil Code.  Goya moved to dismiss Reyes’s second cause of action for emotional distress “on the grounds that it is preempted by USERRA and , ultimately does not exist as a matter of Puerto Rico law.”  Finding that “nothing in the [Act’s] statutory language suggests that state tort law causes of action are pre-empted by USERRA,” and that Goya did not argue that Reyes’s tort claim was based on the same facts as his USERRA claim, the district court denied Goya’s motion.

This decision is significant because it reminds employers that USERRA does not provide “immunity from liability for … tortious conduct” that is separate and independent of a veteran’s USERRA claim.  For information on The Employment Law Group® law firm’s USERRA practice, click here.

A federal judge has ordered Wachovia Securities, LLC (“Wachovia”) to reinstate and pay $1.3 million in back pay and damages to a former financial advisor who alleged that the company violated his rights under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).  According to the former financial advisor, Wachovia violated his USERRA rights when it offered him a lower-paying, less-advanced position upon his return from active duty in 2004.  In response to Michael Serricchio’s claims, Wachovia argued that Serricchio should be barred from recovery because he failed to mitigate his damages when he made the decision to deny Wachovia’s offer of reinstatement and pursue self-employment.  The Court rejected Wachovia’s argument, concluding that “pursuing [self-employment], rather than accepting a lower-paying position at Wachovia was consistent with Serricchio’s duty to mitigate his losses.”  According to the Court, “[t]he notion that starting one’s own business cannot constitute comparable employment for mitigation purposes not only lacks support in the cases, but has a distinctly un-American ring.”  The Court also held Wachovia liable for willfully violating USERRA, finding that the company constructively discharged Serricchio when it failed to promptly reinstate him to his former position despite knowledge of its obligation to do so under USERRA.  Serricchio was awarded double back pay, interest, attorneys’ fees and costs, and reinstatement. 

The judgment, which appears to be the largest judgment under a federal law protecting the employment rights of servicemen, is significant because it affirms the rights of all returning reservists and reminds employers that discrimination against servicemen will not be tolerated. 

The opinion and order in Serricchio v. Wachovia Sec. LLC, No. 3:05cv1761 (D. Conn. March 19, 2009) is available here.  For more information on The Employment Law Group® law firm’s USERRA Practice, click here.

Rep. Artur Davis (D-Al.) has introduced H.R. 1474 to strengthen protections for veterans, reservists and other members of the uniformed services who return to the workforce after military service or active duty.  The bill, which amends the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), codified at 38 U.S.C. §§ 4301 - 4333, would improve the enforcement mechanism of USERRA by: 

• Clarifying that USERRA prohibits wage discrimination;
• Prohibiting mandatory pre-dispute arbitration in claims that arise under USERRA;
• Granting employees the right to a jury trial in cases against private, local and state government employers;
• Clarifying that a merger, acquisition, or other form of succession is not necessary to impose successor liability under USERRA;  and
• Clarifying that Section 4302 of the Act applies to both substantive and procedural rights.

The bill would also require a mandatory minimum of $10,000 to be awarded to employees in all cases in which a violation is found, unless the employer can prove that it took its actions in good faith.  Additionally, the bill would provide for awards of punitive damages where an employee presents evidence that the employer acted willfully or recklessly when it violated USERRA.

The bill has been referred to the Subcommittee on Economic Opportunity.  Hopefully, Congress will promptly enact H.R. 1474 and its companion bill in the Senate (S.263) to close the loopholes in the current law and ensure that servicemembers’ and veterans’ rights are effectively enforced under USERRA.  For more information on USERRA rights and legislation, visit The Employment Law Group® law firm’s USERRA Practice at http://www.employmentlawgroup.net/PracticeAreas/USERRAVeterans.asp.

In an appeal before the United States Court of Appeals for the Seventh Circuit, the National Employment Lawyers Association (“NELA”) filed an amicus brief arguing that the district court erred in Middleton v. City of Chicago, when it applied the catchall four-year limitations period contained in 28 U.S.C. § 1658 to Middleton’s USERRA claim.  In its brief, NELA contends that Congress deliberately omitted a statute of limitations in the text of USERRA because it intended that none be used.  Further, in 2008, the Veterans’ Benefits Improvement Act (“VBIA”) was signed into law which expressly prohibits the application of any statute of limitations to USERRA claims.  Accordingly, the district court should not have applied Section 1658 or any other federal statute of limitations to Middleton’s claim under USERRA.  For more information on USERRA and The Employment Law Group® law firm’s USERRA practice, click here.

On April 16, 2009, Principal Scott Oswald of The Employment Law Group® law firm will speak at a D.C. Bar CLE event titled, “Litigating Under the Uniformed Services Employment and Reemployment Rights Act.”  The seminar will provide an overview of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) including practical advice for litigating USERRA claims administratively and in federal court.  For more information about this event, click here.

In Gingery v. Department of Defense, the Federal Circuit held that the Defense Contractor Audit Agency (“DCAA”) violated the Veterans Employment Opportunities Act (“VEOA”) by hiring two non-preference eligible individuals for an excepted service position under the Federal Career Intern Program (“FCIP”) instead of Stephen Gingery, a disabled veteran and preference eligible candidate.  In his complaint, Gingery alleged that the DCAA willfully violated his veterans’ preference rights under the VEOA when it failed to select him for any of the auditor-trainee positions, failed to notify him of its intent to pass him over, and failed to request permission from the Office of Personnel Management (“OPM”) to pass him over in accordance with the procedures set forth under 5 U.S.C. § 3318(b).

The Merit Systems Protection Board (“MSPB”) dismissed Gingery’s assertions, concluding that the Department of Defense (“DoD”) complied with the required OPM procedures for filling a FCIP position and thus, did not violate Gingery’s preference rights under the VEOA.  The Federal Circuit reversed, concluding that the OPM passover regulation was invalid because it contradicted with the statutory protections guaranteed to veterans with a 30% or more disability.   Finding that the agency did not satisfy the statutory requirements of Section 3318 in filling the FCIP position, the Federal Circuit remanded the case to the MSPB.

This case is significant because it establishes the procedures that an agency must follow when it decides to pass over a preference eligible candidate with a compensable service-connected disability of 30% or more and select a non-preference eligible candidate for a position in the excepted service.  For more information on veteran rights, click here.

Principal Adam Augustine Carter of The Employment Law Group® law firm was featured on Avvo for his legal guide on the Uniformed Services Employment and Reemployment Rights Act (USERRA).  The guide which provides an overview of employment rights and protections under USERRA can be found at http://www.avvo.com/legal-guides/ugc/uniformed-services-employment-reemployment-rights-act. 

The Employment Law Group® law firm routinely represents returning veterans who have been discriminated against on the basis of their military services.  For more information about USERRA and The Employment Law Group® law firm’s USERRA practice, click here.

In Petty v. Metropolitan Government of Nashville Davidson County, the Sixth Circuit held that a Nashville Police Department violated the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) by delaying reemployment to an employee returning from military duty.  Petty, a former police officer for the Metropolitan Government of Nashville Davidson County (“Metro”) alleged that Metro violated his rights under USERRA by denying him prompt reemployment on the grounds that he did not adhere to the department’s return-to-work process. 

The district court granted Metro’s motion for summary judgment, concluding that Metro’s return-to-work procedures could be applied to Petty because they were applicable to all individuals regardless of military service.  The Sixth Circuit reversed, concluding that USERRA prohibits an employer’s adoption of any policy, plan or practice that creates additional prerequisites to a service member’s statutory right to reemployment.  Finding that Petty’s failure to provide the separation papers he received from the military was “statutorily unnecessary” to exercise his right to reemployment, the Sixth Circuit remanded the case to the district court.

Yesterday the House approved by voice vote S. 3023 (“Veterans’ Benefits Improvement Act of 2008”), to enhance the complaint process for the Uniformed Services Employment and Reemployment Rights Act (USERRA) and prohibit application of statutes of limitations to USERRA claims.  The Senate passed the bill by unanimous consent last week.  The bill will expedite the processing of USERRA claims by creating deadlines for agency responses.  In particular, the bill:

• Requires the Department of Labor’s Veterans’ Employment and Training Service (VETS) to complete its investigation and notify the employee of its results within 90 days of receiving a complaint; 
• Requires the VETS to refer a complaint to the Attorney General or Office of Special Counsel (OSC) within 60 days of receiving a complaint; and
• Requires the Attorney General or OSC to determine whether to provide legal representation to the employee and provide written notification to the employee on same within 60 days of receiving a referral.

The bill also calls for every federal agency to provide training to human resources personnel on employment and reemployment rights provided to federal employees under USERRA.