Nolo’s Employment Law Blog

Yesterday, the Supreme Court issued one of the most anticipated decisions of this term, Ricci v. DeStefano. Ricci is a reverse discrimination case, in which 18 firefighters (17 white and one Hispanic) sued the city of New Haven for refusing to certify test results that would have put them in line for promotion. New Haven didn't certify the test results because white applicants scored so much higher than African American and Hispanic applicants that the city feared it would be sued for race discrimination by nonwhite candidates if it relied on those results. The Court's decision left the city (and by extension, all other employers) precisely midway between a rock and a hard place. And the opinions the court issued in the case reveal markedly different views on the purpose of laws prohibiting discrimination.

Here are the basic facts (the combined opinions run to 93 pages, so I'll try to cut to the chase): The city of New Haven gave oral and written tests to candidates for promotion to the positions of lieutenant and captain. The results were combined, weighted (the written test was worth 60% of an applicant's score and the oral test made up the remaining 40%), and used to rank candidates who passed the test. When a position was available, it had to be given to one of the top three candidates on the list. White candidates passed at a significantly higher rate (and with higher scores) than African American and Hispanic candidates, resulting in promotion lists that looked like this: All ten of the candidates who would have been considered for a promotion to available lieutenant positions were white, as were seven of the nine candidates for available captain positions.

Upon seeing these results, the city determined it had a potential problem: Nonwhite candidates might sue based on a disparate impact theory, claiming that although the test was facially neutral, it had the effect of discriminating based on race. After holding a series of hearings, the city ultimately didn't certify the test results. A group of firefighters who did well on the test sued, claiming that the city's refusal to rely on the test results was discriminatory.

The five-Justice majority ruled against the city and in favor of the mostly white test takers. Justice Kennedy, writing for the majority, found that the city's decision not to certify the test scores was itself based on race (the marked racial disparity in the test results, that is) and was therefore discriminatory. The majority also found that the city's fear of a disparate impact lawsuit if it certified the test results was not an adequate defense unless the city had a "strong basis in evidence" to believe the results were discriminatory.

This "strong basis" standard is new to Title VII cases, and has led to much commentary that asserts that the Court changed the rules in discrimination cases. The Court also left employers in a deep bind: Rely on test results that create a racial disparity and risk a disparate impact lawsuit; disregard those test results and risk a disparate treatment lawsuit. In this very case, African American firefighters have said they will sue for disparate impact if the city does as the Court says it must and certifies the test results.

Here are a few of my takeaways from this case:

Anyone still think we're "post-racial"? Reverse discrimination cases highlight a profound split in the way race -- and civil rights laws -- are viewed in this country. Those laws were passed to remedy particular types of discrimination, against groups that have been historically disadvantaged. As Justice Ginsberg's dissent pointed out, there is a long history of racial discrimination against African Americans and Hispanics in the field of firefighting, New Haven has been part of that unfortunate history, and this is part of the reason why Title VII was extended to cover municipal governments. Reverse discrimination allegations don't speak to this legacy: Instead, they claim that any consideration of race is wrong, period, as the majority opinion did in this case. No matter which side of this debate you come down on, it's clear that we have not come to any kind of consensus about what role -- if any -- race should play in our decision making.

Will this be on the test? One of the basic facts underlying this case is the continuing, seemingly intransigent racial disparity in written test scores. As some of those who testified before the city in this case pointed out, statistics still show that whites tend to score better on standardized written tests than African Americans and Hispanics, and we still don't really know why. In this case, New Haven clearly tried to come up with a test that wouldn't produce this result, and failed. So why are written tests still so common in so many fields? Is a written test really the best way to determine who will be the best lawyer, student, driver, firefighting supervisor? It's a question employers should certainly consider, especially now that the Supreme Court has said that there might be a lawsuit with your name on it whether or not you rely on the results of a test that reveals a racial disparity.

Civil Rights Act of 2009 (or 2010), here we come. This is not the first controversial disparate impact case the Supreme Court has ever decided. Although the majority reviewed the history of disparate impact as a legal theory, it omitted the Wards Cove case, in which the Court made it much more difficult for employees to win a disparate impact case. Congress explicitly overturned the Wards Cove case (along with a few others) in the Civil Rights Act of 1991. The Ricci case, along with a couple of others issued this term (Hulteen and Gross, for example), might spur this session of Congress to similar action.

Just days before this weekend's gay pride celebrations, Representative Barney Frank introduced the Employment Nondiscrimination Act (ENDA) in the House of Representatives. ENDA would outlaw employment discrimination on the basis of sexual orientation or gender identity.

The gender identity part didn't make it into the bill last time around, much to the consternation of many LGBT activists. This year's model is referred to as "inclusive" because it includes gender identity protection. (Prohibiting discrimination based on gender identity, defined as a person's gender-related appearance, mannerisms, characteristics, or identity, with or without regard to the person's designated sex at birth, would protect transgendered employees and employees who don't conform to the stereotypes associated with their gender.)

The bill -- H.R. 2981 -- has a number of similarities to existing laws that prohibit discrimination. (You can find it at the Library of Congress's THOMAS website; search for the bill number.) It would apply to private employers with at least 15 employees (like Title VII and the ADA), prohibit discrimination in every aspect of employment, prohibit retaliation, and use the same enforcement mechanisms and procedures as Title VII. However, there are some key differences:

• Disparate impact claims may not be brought under ENDA. Only intentional discrimination is prohibited. 
• In case you didn't hear it the first time, the bill explicitly doesn't prohibit employers from enforcing rules or policies that do not intentionally violate the law, as long as those rules or policies are enforced consistently. In other words, really no disparate impact claims.
• Employers may enforce their usual dress and grooming codes during work hours, as long as they allow employees who have already undergone gender transition, or are transitioning while employed, to conform to the standards of the gender to which the employee is transitioning.
• Employers don't have to create new or additional facilities (restrooms, changing rooms, and so on) to comply with the bill. However, employers must allow the employee reasonable access to facilities that are "not inconsistent" with the employee's gender identity, as established when the employee was hired or when the employee notifies the employer of a gender transition.
• The military and religious organizations won't have to comply with the law.
• The bill doesn't require employers to offer the same benefits to unmarried couples as to married couples -- and, for purposes of the bill, "married" is defined as in the Defense of Marriage Act (DOMA), as between a man and a woman. So married same-sex couples might not be married under this provision.  

ENDA has been kicking around Congress for more than a decade, but the possibility of passage looks brighter this year, given the political makeup of the House and Senate and the support of President Obama (whose administration is currently drafting rules to protect federal transgendered employees from discrimination).  

I was shocked by the front page article in the New York Times today, "Mind Your BlackBerry or Mind Your Manners." According to the article, an etiquette debate has broken out over the use of smart phones at meetings -- in other words, and here's where I was surprised, one side of the debate takes the position that it's just fine. They argue that they may need to respond to a client or customer immediately, and that engaging in text "chatter" by smart phone with others at the same meeting can loosen things up and stimulate creativity.

Nice try. Unless you're taking notes or calling up documents or information for the group's benefit, using a BlackBerry, Apple iPhone, or another communication device with a catchy fruit-flavored name at a meeting is just the most recent form of age-old meeting behavior: Not listening. If you really must be in constant communication with clients and customers, here's an idea: Skip the meeting. If you want to spur creativity and engage in witty banter, why not make your comments out loud? Probably because you didn't want to say them to everyone. Which means you're not only not listening, you're also excluding coworkers and creating a clique-like feeling in the room. Believe me, everyone else can tell you're texting each other. 

Full disclosure: I really don't like meetings. I start stacking my papers and blurting out "adjourned" as soon as I sense an opening. So I'm hoping part of the solution to this etiquette problem is fewer meetings. Really, if no one is listening, the meeting probably isn't that important and everyone could have just skipped it. But if the meeting is necessary, people shouldn't be forced to sit through this kind of rude behavior. Unless there's a meeting-related need for employees to use smartphones, ask that phones be turned off. Employees who are expecting an important communication can set phones to vibrate -- then take the call or respond to the message outside. Let's make meetings shorter and more efficient for everyone.  

Yesterday, the Supreme Court issued what's likely to be a controversial decision in an age discrimination case. The plaintiff, Jack Gross, sued his employer, FBL Financial Services, claiming that he had been demoted because of his age. (A younger employee, whom Gross had trained, was assigned many of his former responsibilities.) A federal jury found in favor of Gross, and awarded him almost $47,000.

FBL appealed, claiming that the judge gave incorrect jury instructions. The argument boils down to who has to prove what in an age discrimination case. In other types of discrimination cases (those brought under Title VII), if the plaintiff can show that the forbidden characteristic played a role in the decision being challenged, the burden of proof shifts to the employer, which must show that it would have made the same decision regardless. These are referred to as "mixed motives" cases. The shifting burden gives the employer an affirmative defense: Even though the statute was violated because an illegal factor was considered, the employer can argue, in essence, "no harm, no foul," by showing that the bias ultimately didn't dictate the outcome. 

In yesterday's decision, the Court said this framework doesn't apply to age discrimination cases. The plaintiff has the burden to prove that age was the "but-for" cause of the decision -- that is, that the decision wouldn't have been made if not for the age discrimination. The burden of proof never shifts to the employer. If mixed motives are at work (for example, biased comments by decision-makers and poor performance reviews), it's up to the plaintiff to show that bias made the difference.

Here are a couple of things I found interesting about the case:

• Role reversals. Justice Thomas, thought to be a member of the "judicial restraint" wing of the Court, wrote the majority opinion. As Justice Stephens' dissent points out, that opinion asked a question the parties hadn't asked the Court to answer. Clearly enjoying the opportunity, Stephens accuses the majority of "unnecessary lawmaking," "utter disregard of our precedent and Congress' intent," and "inattention to prudential Court practices," all charges more typically levelled against Stephens and his fellow dissenters.
• Congressional intent. The mixed motive framework that applies to Title VII cases was ratified by Congress in the 1991 Civil Rights Act. The crucial bit of language in the ADEA that the Court analyzed in this case is identical to language in Title VII. Stephens argued that this means Congress expects the Court to apply the mixed motive burdens in ADEA cases; Thomas argued that if Congress wanted that, it should have said so explicitly. I have a feeling Stephens will be proven right here; Congress hasn't been shy about overturning the Court on employment issues (see the Lilly Ledbetter Fair Pay Act, for example).
  

It's all about the box -- the "standard 4"x 4" plexi cube" that each Starbucks store is required to use as a container for tips, that is. Last week, a California Court of Appeal overturned a huge class action award to Starbucks baristas, finding that it was perfectly legal to divide tips from the box among the baristas and shift supervisors who worked each shift. The shift supervisors were the cause of the dispute. Attorneys for the baristas argued that they shouldn't be allowed in the tip pool because, as supervisors, they were agents of the employer, and such agents can't share tips under California law. (Section 351 of the California Labor Code provides that "no employer or agent shall... receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron....")

The trial was largely about whether the shift supervisors are agents -- that is, whether they really had enough managerial authority to elevate them out of the ranks of the baristas and make them representatives of the employer. But the Court of Appeal didn't spend any time on this issue -- it didn't even decide whether or not the shift supervisors really are agents. Instead, it focused on the "left for an employee" part of the statute, finding essentially that the customer had already pooled the tips among all of the service employees by putting them in a communal tip box. Because the shift supervisors spent much of their time serving customers, and customers knew that their tips would be divided among the employees providing service, it was appropriate to divvy the tips, even if the supervisors were agents.

The more I think about this decision, the odder it seems, for several reasons:

• The court emphasized that employees are free to keep tips given directly to them by a customer -- it's just the tips in the box that get divided. In other words, this case isn't about tip pooling, because the tip was left for a group of employees in the first place. In my decades of patronizing my coffee chain of choice, I've never seen a customer tip an employee directly. This isn't how tips work for counter service, yet the court's decision is based on this distinction between a type of tips that exists and one that largely doesn't. 

• The court focused on customer expectations. But that approach makes the statute meaningless in this context. Shift supervisors are only the lowest level of managers at Starbucks, which also has assistant managers and store managers who spend a lot of time serving customers, too. They aren't allowed to share tips per Starbucks policy, but under the court's reasoning, they should. All the customer sees is someone serving coffee and pastries. If the customer's understanding is all that matters, CEO Howard Schultz should get his fair share of the tip box if he spends an hour pulling espresso shots.

• Customer expectations haven't won the day in other types of tip pooling cases. For example, California courts have repeatedly held that it's legal to require restaurant wait staff to pool tips with bussers, dishwashers, cooks, and other employees who contribute to the service of the diner, as long as no employers or agents are allowed in the pool. Although diners may not object to tips being divided in this way, I don't think that's what most expect when leaving a tip.

• The "agent" argument is the key to the other cases the court cites. For example, the court discusses a casino case in which dealers had to share tips with other employees including shift and floor managers. That case found that it was legal to require tip pooling with employees as long as they weren't agents. Based on job duties, the court in that case found that the floor managers were not agents -- and so could share in the tips -- but the shift managers were agents and therefore not entitled to tips. The court could have analyzed the Starbucks case in just this way, but chose not to.

All of this isn't to say that the baristas have a slam-dunk case. It sounds like the shift supervisors spent most of their time serving customers too, and really didn't receive much more compensation for doing it. Their actual job duties will reveal whether they have "the authority to hire or dicharge any employee or supervise, direct, or control the acts of employees," the definition of an agent. But I think this -- whether or not the shift supervisors are agents -- is the crux of the case, not whether the tips go into the box or the hand.

Today, Judge Sonia Sotomayor is making the rounds in Congress, meeting and greeting Senators as they prepare to offer President Obama their "advice and consent" on his Supreme Court nominee. Many hot-button issues are sure to be discussed, from the death penalty to the right to privacy, the proper role of the courts, and much more. Judge Sotomayor's six years as a federal District Court judge and more than ten years on the Second Circuit Court of Appeals have yielded plenty of opinions for advocates to parse -- and apparently more than 100 of them address labor and employment issues. You can see a detailed list, with links, at the excellent Jottings By an Employer's Lawyer blog.

Two bills were recently introduced in Congress that would amend the Family and Medical Leave Act (FMLA). You can read them both (they're short) by searching for the bill numbers below at http://thomas.loc.gov.

The Family and Medical Leave Inclusion Act, H.R. 2132, would expand the FMLA to protect time off to care for a sibling, grandparent, adult child, parent in-law, domestic partner, or same sex spouse with a serious health condition.

The Family and Medical Leave Restoration Act, H.R. 2161, would require the Department of Labor to make a number of changes to the FMLA regulations. The DOL would have to:

• Repeal a number of the recently issued regulations and replace them with the regulations that were previously in place. The new regulations to be repealed include those dealing with notice requirements, clarifying and authenticating medical certifications, and attendance bonuses, among other things.
• Revise the new regulation on recertification to provide that recertification may be requested only when the duration of the medical condition indicated on the original certification has expired, or every year. (The new regulation allows recertification every six months.)
• Change the new definition for a "serious health condition" to remove the requirement that the employee visit a health care provider a certain number of times. The new regulation requires either two visits within 30 days or one visit within seven days of the conditions's onset, with continuing treatment; at least two visits per year are required for chronic conditions. This bill would require only such treatment as the health care provider deems necessary.

It's a good thing my employer offers paid sick leave. That meant I could stay home a few days ago with my summer cold. I was able to catch up on my sleep, and my office mate was able to not catch my cold. Many employees aren't so lucky: According to the Bureau of Labor Statistics, 39% of those who work for private employers don't get paid sick leave.

But that could be changing soon. Earlier this week, Rep. Rosa De Lauro (of Connecticut) reintroduced the Healthy Families Act, HR 2460. The bill would require some employers to offer paid sick leave. Sen. Ted Kennedy is expected to introduce a similar bill in the Senate this week, depending on the state of his own illness and how it affects his return to work. (To read the bill, search for "HR 2460" on the Library of Congress's THOMAS website.)

The bill would require employers with at least 15 employees to provide one hour of paid sick leave for every 30 hours an employee works, up to 56 hours per year. Employees could use the sick leave for their own illness, for preventive care, to care for a family member (defined broadly to include anyone related to the employee "by blood or affinity whose close association with the employee is the equivalent of a family relationship"), or to seek medical or legal assistance relating to domestic violence, sexual assault, or stalking.

This bill includes rights that already exist in a number of states and localities, although the federal bill knits together several types of state and local laws: paid sick leave laws, as are in effect in San Francisco and Washington, DC; so-called "small necessities" laws, which allow parents to take time off for their children's school-related activitites and often to take children to preventive care medical and dental visits; and domestic violence leave laws.

Last year, the EEOC accepted more than 6,000 charges from employees alleging pregnancy discrimination. It's hard to believe, but there was a time -- just 30 years ago -- when it was considered perfectly fine for employers to treat pregnant women differently (read: worse) than everyone else. Despite the passage of Title VII in 1964, many employers continued policies that, for example, required women to stop working at a particular point in their pregnancy or provided paid time off for every conceivable reason except pregnancy and childbirth.

In a notorious 1976 case called General Electric Co. v. Gilbert, the Supreme Court upheld practices like these, finding that pregnancy discrimination was not gender discrimination because, even though only women can get pregnant, not all women do. In the Court's language, distinctions based on pregnancy don't divide the world into women and men, but into pregnant women and "nonpregnant persons." Because women are on both sides of the dividing line, the result can't be discriminatory.

Long hailed as an example of overly legalistic reasoning that misses the point -- and a reason why the Court needed at least one female member -- the Gilbert decision was quickly overturned by Congress in the Pregnancy Discrimination Act (PDA), which stated that pregnancy discrimination is a form of gender discrimination. This was too late to help many of the women who had been penalized at work in various ways for getting pregnant.  

At AT&T, for example, time women took off for pregnancy and childbirth was not fully counted as hours of service, used as the basis for calculating pensions and other benefits. While employees who took disability leave for other reasons received full credit for the entire period of their leave, employees who took pregnancy leave received a maximum credit of 30 days, later raised to six weeks. AT&T changed its policy once the PDA passed, but the women who had already been subjected to these policies continued to have their pensions calculated based on service to the company, which excluded some of their pregnancy leave.

The Supreme Court recently decided the pregnancy discrimination claims of a group of these women, in AT&T v. Hulteen. The Court found that it was legal for AT&T to continue calculating pensions on the basis of these pre-PDA policies. Even though these women continue to receive pension payments based on a discriminatory practice, the Court found in favor of AT&T, primarily because the practice was legal -- as evidenced by the Gilbert decision -- when it was in place, and the PDA was not retroactive. Justice Ginsberg dissented, arguing that AT&T's system continues the discriminatory effects of its former policy. Because the women are suffering discrimination today, in their pension checks, there is no issue of retroactivity.   

Interestingly, the AT&T decision was written by Justice Souter, whose impending retirement has led to much speculation over who -- and more generally, a person of which gender -- will be nominated to replace him. Put dissenting Justice Ginsberg in the camp of those who are hoping for another female Justice: In a recent interview with USA Today, Justice Ginsberg said that in the oral arguments in the AT&T case, some of her male colleagues revealed "a certain lack of understanding" about gender bias in the workplace. In the same interview, she called for some female company on the Court, saying "Women belong in all places where decisions are being made."    

A very interesting article in the New York Times this weekend addressed the common -- but not often discussed -- problem of women, particularly those in management positions, bullying other women. (It's called "Backlash: Women Bullying Women at Work," by Mickey Meece.) A survey cited in the article says that 40% of workplace bullies are women. And women are much more likely to bully other women; men who misbehave apparently tend to be equal opportunity bullies.

I'm sad to say that these facts don't surprise me. I've been lucky enough to have some wonderful managers of both genders in my career, but I've also seen -- and heard about -- really atrocious behavior by women, particularly towards female subordinates, and particularly towards the lowest on the office totem pole: secretaries, receptionists, and so on. In the schoolyard, bullying connotes someone who has more power picking on someone who has less -- often, the bigger kids picking on the smaller, or the popular kids picking on those who are less so. The female workplace bullying I've witnessed has taken a similar form: Someone with much more power, a much higher salary, and more privilege picking on someone with no power, living paycheck to paycheck, and stuck in that job.

The article points out a few possible reasons for female bullying. Some women have had to work very hard to climb the corporate ladder, and may have come to rely on more aggressive, competitive behavior. Perhaps women are being held to gender-based stereotypes (that they should be nurturing and sensitive rather than assertive). I would add a couple of others I've heard: Women who've had to be tough to get ahead want other women to toughen up, too, and to realize that they have to do their best in order to succeed. Some women also see bullying as a gender equality issue, raising arguments like, "No one would ever question a man who treated his secretary the way I treat mine."

Arguments like these ring fairly hollow to me. Gender discrimination and gender stereotyping certainly exist, and male and female managers are often held to different standards. But that's no reason to mistreat subordinates. The real gender equality issue here has to do with the victims of workplace bullying, not the perpetrators. Companies in which managers -- of either gender -- disproportionately focus their abuse on female employees are vulnerable to charges of sex-based harassment or sex discrimination. It doesn't matter if the manager is trying to toughen up female subordinates, defying gender-based stereotypes, or just being a jerk.

Last week, the Department of Homeland Security announced that it had issued new guidance to Immigration and Customs Enforcement ("ICE"). The new marching orders: Focus on employers, not employees. The press release on the new rules says that, effective immediately, worksite enforcement resources will be focused on the criminal prosecution of employers who knowingly hire unauthorized workers, "to target the root cause of illegal immigration."

The press release points out that previous efforts resulted in many more arrests of workers than employers. Of the more than 6,000 arrests ICE made in 2008 as part of its worksite enforcement program, 135 were employers, managers, and human resources personnel. The rest were the workers themselves.

Just as ICE is refocusing its efforts on employers, the Supreme Court took away one of its tools for prosecuting workers. The workers arrested by ICE often face criminal charges relating to their use of false identity information. Prosecutors could also tack on the charge of aggravated identity theft, which carries a two-year sentence extension, if the worker knowingly used someone's else's identification. According to the New York Times, prosecutors used the threat of that additional punishment to convince workers to plead guilty to lesser charges, such as document fraud.

Earlier this week, the Supreme Court held that the crime of aggravated identity theft requires the alleged thief to know that the identification information he or she is using actually belongs to someone else. In other words, a worker can no longer be charged with aggravated identity theft simply for making up a Social Security number; the worker must know that the number belongs to another person.

In my earlier post on French workers kidnapping their bosses, I pointed out that the tactic seems to be working: Recent boss-napping incidents have resulted in renewed negotiations between labor and management, which is often what the workers say they want. A new poll shows that boss-napping is not only effective, it's also got popular support. According to a post in Charles Bremner's blog at the Times Online (UK), a recent survey by the Parisien shows that 45% of the French think it's acceptable to kidnap the boss. (Note: Slightly more -- 50% -- say they don't approve of the tactic.)

It's spring break, when thousands of college students follow the time-honored tradition of heading to warmer climates to party. But these days, when the job market for soon-to-be college graduates looks pretty bleak, spring break revelers might want to remember this: Prospective employers have Internet access. If a search for your name turns up, say, a photo of you at a party with the caption "Drunken Pirate," your job prospects might go from grim to nonexistent.

Recent news reports show that applicants and employees alike don't seem to realize that their Internet posts are public -- as in, employers can find them, read them, and perhaps figure out who posted them. That's what "theconnor" learned recently when, after being offered a job at Cisco, he tweeted the news, along with this commentary: "Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work." Soon, someone from Cisco responded, "Who is the hiring manager. I'm sure they would love to know that you will hate the work. We here at Cisco are versed in the web." Then, the website "Cisco Fatty" was created to memorialize the whole incident. (Check out the whole story here.

Then there's the teacher who got fired for his MySpace page, which he said he created to communicate with students outside of school and build a better relationship with them. Apparently, the road to a better relationship was paved with nude photos, cursing, and inappropriate conversations. The teacher lost his wrongful termination lawsuit.

Managers routinely report that laying off workers is one of their least favorite job responsibilities. And it's no wonder why: Especially in our current tough economic climate, managers worry about whether laid off workers will be able to find a new job -- and make ends meet while they're looking. Add to that the stress of having to actually break the news to employees, worries over whether remaining employees will be able to handle the workload, and concern over whether the company itself will survive the recession, and you can see why layoffs provoke so much managerial anxiety.

Well, they've got even bigger concerns in France: kidnapping. As reported by CNN, there were three separate kidnapping incidents in March 2009, at Sony France, 3M France, and most recently at Caterpillar. Employees at Caterpillar, angered after hearing that the company had proposed laying off 700 workers, took four executives hostage; there's no word yet on whether they've been released. The workers did release a human resources director who recently had a heart attack. As tactics go, this one is proving to be effective: The kidnapping incidents at Sony France and 3M France both resulted in renewed discussions or negotiations between the union and the company, which is also what the Caterpillar workers say they want.

President Obama recently announced that he will send 4,000 additional troops to Afghanistan, on top of the deployment of 17,000 troops announced last month. Many of those deployed will be members of the National Guard and Reserve, most of whom must leave civilian jobs to serve in the military. According to Employer Support for the Guard and Reserve, members of the Guard and Reserve make up almost half of our country's total military force. As of last week, figures released by the Department of Defense showed that more than 700,000 members of the Guard and Reserve have been activated since 9/11.

When these service members return from duty and go back to their civilian jobs, they have fairly extensive employment rights. The Uniformed Services Employment and Reemployment Rights Act (USERRA) gives returning members of the Guard and Reserve the right to be restored to the position they would have held if they hadn't served -- that is, their former position, plus any additional seniority, promotions, raises, and so on they would have received had they been continuously employed. The most significant protection USERRA provides kicks in after reinstatement: Employees who return from military service are no longer at-will employees for up to one year. They may be fired only for just cause. 

A recent case from Connecticut shows just how costly it can be for employers to disregard USERRA. Michael Serricchio was called to active duty in the Air Force after 9/11. He left his job as a financial adviser at Prudential Securities; when he returned two years later, the company had been acquired by Wachovia and Serricchio was offered a position with a much lower rate of compensation than his previous job. A jury found that Wachovia had violated USERRA by failing to restore Serricchio to his previous position.

That left it to the Court to put a dollar amount on Serricchio's damages. The figure the court came up with was $778,906, plus interest, plus attorney fees and costs. And that's not all: The court also found that Serricchio was entitled to reinstatement, with a monthly salary of $12,300 for the first nine months, after which he will be entitled to the same amount as a draw against commissions for a few months, after which he will have to generate his own income from his client accounts. (You can find the opinion on damages, as well as an earlier opinion from March 2008 summarizing the issues in the case, here; use the caption search for "Serricchio.")

Recently enacted provisions of the Family and Medical Leave Act (FMLA) also provide some protections related to military service -- not directly to those who serve, but to their family members. The new provisions allow family members of Guard and Reserve members who are called to active duty to use FMLA leave to handle "qualifying exigencies," including arranging child care, helping the military member with legal matters such as making a will, or attending counseling sessions. The FMLA also now allows family members to take up to 26 weeks of leave to care for a family member who is seriously injured or becomes seriously ill while on active military duty. (These family military leave provisions are summarized here.) As more troops are deployed, we'll see how these new rights are interpreted and enforced by the courts.