FEDERAL APPELLATE COURT AFFIRMS $738,000 JUDGMENT AGAINST EMPLOYER FOR WILLFUL USERRA VIOLATION
By Eric J. Pelletier, Principal, Offit Kurman Employers beware of the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C.§ 4301, et seq. In Fryer v. A.S.A.P. Fire & Safety Corp., Inc. 2011 U.S. App. Lexis 18686 (Sept. 9, 2011), the United States Court of Appeals for the First Circuit affirmed a judgment against an employer of $738,485.27 for failing to reinstate a veteran to his former employment position following his military service in Iraq. The employer reemployed the plaintiff, but in a different position, and later terminated him, allegedly for absenteeism. Although the plaintiff earned three dollars more per hour in his new position, he was unable to receive commissions and certain other benefits as he had in his former position. After he was terminated, the plaintiff sued the employer for violation of USERRA, and under Massachusetts anti-discrimination and wage and hour laws. The Plaintiff claimed that the employer violated USERRA by failing to reinstate him in his pre-service position, discriminating and retaliating against him because of his military service, and terminating him because of his military service. The plaintiff alleged that the violations of USERRA were willful, meaning that the employer showed reckless disregard as to whether its conduct violated USERRA and the jury agreed. Fryer is remarkable not for its legal holdings, but rather for the amount of the judgment, which included $42,234 in back pay, $105,000 in front pay (both for USERRA violations), $289,000 in emotional distress damages under state anti-discrimination laws, $33,532 in prejudgment interest, nearly $200,000 in attorney’s fees, and more than $25,000 for lost overtime and lost commissions. Because the employer was aware of the obligation to re-employee the plaintiff, but steadfastly denied his numerous requests to be placed in his prior position, the court affirmed the trial court’s finding that the employer willfully violated USERRA. As with any anti-discrimination law, Employers should familiarize themselves with USERRA, which requires re-employment of employees who leave work for military service, prohibits retaliation and discrimination against employees because of their military service, and prohibits termination because of military service. If you have a matter involving employees returning from the military, or any other employment law matter, and would like advice about how to proceed, please contact Eric Pelletier at 240.507.1739 or firstname.lastname@example.org.