According to The National Employment Lawyers Association’s On The Hill, the Veterans’ Benefits Act (VBA) of 2010, which amends the Uniformed Services Employment and Reemployment Rights Act (USERRA), is a clarification of the law and retroactively applies to USERRA claims.  The VBA clarifies that USERRA prohibits wage discrimination against servicemembers, i.e., paying servicemembers lower wages than co-workers in the same or similar position.  The VBA also requires courts to apply a multi-factor test when determining whether an employer is a successor-in-interest who can be held liable for a previous employer’s USERRA violation.  Those factors include:

• continuity of operations;
• similarity of facilities;
• continuity of work force;
• similarity of jobs and working conditions;
• similarity of supervisory personnel;
• similarity of machinery, equipment, and production methods; and
• similarity of products or services. 

For more information about The Employment Law Group® law firm’s USERRA Rights Practice, click here.

Adam Carter, R. Scott Oswald, and Jason Zuckerman, principals at The Employment Law Group® law firm, published their article titled Litigating Claims Under The Uniformed Services Employment and Reemployment Rights Act in the National Employment Lawyers Association’s Employee Advocate.  The article discusses the three types of USERRA claims:

1. Failure to reemploy the service member upon return from uniformed service;
2. Premature termination; and
3. Discrimination in the denial of an entitled right or benefit, or retaliation for exercising a right or engaging in an activity protected under USERRA, where the employee’s uniformed service is a motivating factor in the employer’s adverse employment action.

The article also provides insights on litigating USERRA claims, focusing on the following key areas:

1. Meeting the burden of proof;
2. Pleading strategies;
3. The employer’s affirmative defenses;
4. Surviving dispositive motions;
5. Discovery strategies; and
6. Jurisdiction and venue.

The remedies under USERRA include lost wages and benefits caused by the employer’s violation, reinstatement, attorneys’ fees, and front pay where reinstatement is not a viable option.  For more information about The Employment Law Group® law firm’s USERRA Rights Practice, click here.

President Obama has signed into law H.R. 3219, The Veterans’ Benefits Act of 2010, which improves USERRA by prohibiting wage discrimination against servicemembers.  For more information about The Employment Law Group® law firm’s USERRA Rights Practice, click here.

On Oct. 1, 2010, The Veterans’ Benefits Act of 2010 was sent to President Obama for his signature.  The Act expands USERRA to prohibit wage discrimination and creates a 36-month trial period for referring USERRA claims brought against Federal executive agencies to the Office of Special Counsel (OSC).  Under the trial program, the OSC shall handle USERRA claims brought by individuals who have a related claim under 5 U.S.C §1212 and any USERRA claim brought by an individual whose social security ends in an odd number.

The Act also contains several other improvements for veterans including amendments to the Veterans Group Life Insurance Program.  A copy of the Act is available here.

For more information about The Employment Law Group® law firm’s USERRA Rights Practice, click here.

In two articles on employment law depositions, Nick Woodfield is quoted giving pointers for preparing your client and extracting information from the employer.  The articles titled “How To Take Employment Depositions The Right Way,” and “How To Steel Your Client For An Employment Deposition,” were published by Law360 on April 30 and May 3, 2010. 

In the first article, Woodfield provides advice for extracting inaccuracies and conflicting information from employers and how to deal with difficult deponents.  According to Woodfield, it’s important not to linger once you uncover an inconsistency, “[b]y the time they realize what they’re saying and the conflict they’ve just created, that’s your clue to get out of the subject matter.” 

In the second piece, Woodfield talks about examining a client’s history for inaccuracies that the employer may try to exploit and how to help a client relax yet remain guarded.  “The most dangerous defense counsel are very often not the ones yelling at them because that keeps my clients guarded,” notes Woodfield. 

For more information about The Employment Law Group® law firm, click here.

On April 9, 2010, the Northern District Court of Illinois issued an opinion in Andritzky v. Concordia University Chicago, affirming the well-established rule that “circumstantial evidence that is relevant and probative on any of the elements of a direct case of retaliation may be admitted and, if proven to the satisfaction of the trier of fact, support a case of retaliation.”

In 2009, Frank Andritzky filed a complaint against his former employer Concordia University Chicago (CUC) and CUC officials, alleging that CUC and its officials had violated the Uniformed Services Employment and Reemployment Rights Act (USERRA).  Specifically, Andritzky alleged that during the period of 2002 – 2007, CUC violated USERRA by demoting him to probationary status, requiring him to sign multiple one-year contracts, and ultimately terminating his employment because of his military service.  In response, CUC argued that Andritzky’s claims arising before July 6, 2005 were time barred under the federal four-year catchall statute of limitations and thus, should be dismissed.  Additionally, CUC argued that the allegations in Andritzky’s claims should not be admissible as circumstantial evidence because the claims did not amount to a continuing violation but rather served as a series of related, but discrete, discriminatory acts.  While the district court agreed that the continuing violation doctrine was inapplicable to Andritzky’s claims, the court still sided with Andritzky, holding that circumstantial evidence is admissible where appropriate to support a case of retaliation.

Mr. Andritzky is represented by TELG Principals Scott Oswald and Adam Augustine Carter.  For more information about The Employment Law Group® law firm’s USERRA practice, click here.

In Fryer v. A.S.A.P. Fire & Safety Corp., a jury awarded an Iraqi War veteran $505,000 for back pay, front pay, and emotional distress, finding his employer liable for violating the  reemployment, discrimination, and retaliation provisions of USERRA.  Fryer worked as a sprinkler fitter prior to his deployment.  When he returned from Iraq, he was rehired as a sprinkler helper and later terminated.  After losing a five day jury trial, the defendants filed a three sentence motion requesting a new trial or remittitur.  Without any explanation or supporting memorandum, the motion alleged that the verdict was contrary to the evidence and a miscarriage of justice and that the damages were outrageously excessive. 

The judge concluded that the defendants’ failure to support their argument with any “closely related document” was sufficient to deny the motion and found sufficient evidence to support the jury’s verdict.  She agreed that the employer’s excuses were pretextual and rejected any notion that the award was not fully supported by the evidence introduced at trial.  In particular, she held that an employer may not “refuse to reemploy [a military service member] on the basis that another employee was hired to fill the reemployment position during the [military member’s] absence, even if reemployment might require the termination of that replacement employee.” 

For more information on The Employment Law Group® law firm and its USERRA Practice, click here.

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.