Mar 30, 2009

More Troops to Afghanistan Bring More Responsibilities for Employers

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.