According to a May 28, 2017 article in the Austin American-Statesman, members of Congress, including Lloyd Doggett, asked the Department of Labor to change rules that shield frequent violators of USERRA. USERRA is the law that protects Guardsmen, Reservists and other service members from discrimination in their civilian jobs. Some employers just do not get it. They do discriminate frequently. Dept. of Labor knows who they are because DOL processes with administrative complaints filed by the Reservists.

In 2016, the House Veterans Affairs Committee opened an inquiry into the ,matter after the newspaper reported several employers in Texas frequently discriminated against Reserve members in their civilian jobs. DOL initially agreed to change their rules, but have not cooperated since. In Texas, some 16 different employers have had multiple complaints filed which DOL investigated. Those investigations resulted in a settlement or a finding of discrimination.

In 2016, the American-Statesman submitted FOIA requests to DOL seeking the names of the employers. But, the DOL refused, saying they need to protect the privacy of the service member. Lloyd Doggett met with DOL officials in December, 2016. They told him they feared that outing these employers would cause them to hire veterans less.

A review by the newspaper suggests some 40% of lawsuit filed based on USERRA are against state and federal agencies. Texas lead the nation in 2015 with 230 USERRA complaints filed with DOL.

The Trump administration has reportedly instructed departments to refuse requests from Democratic members of Congress, further obstructing Rep. Doggett’s efforts to seek transparency. See Austin American-Statesman report.

Arbitration of legal disputes has become so common that now it has even invaded the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Navy Lt. Kevin Ziober filed suit against his former employer after it fired him. BLB Resources, Inc. fired him on his last day of work before just before he deployed to Afghanistan in 2012. Lt. Ziober was a Naval Reservist. Lt. Ziober filed suit. But, the employer, a real estate management company in California, invoked the arbitration agreement he had signed. See Military Times report here. The lieutenant argued before the Ninth Circuit that the history of the USERRA indicated that Congress had intended that the USERRA be exempt from arbitration. The Ninth Circuit Court of Appeals did not agree.

The plaintiff pointed to the clause in the USERRA that prohibits the waiver any right the consumer might have under the statute. But, replied the Ninth Circuit, the Supreme Court addressed essentially the same clause in the Credit Repair Organizations Act in CompuCredit Corp. v. Greenwood, 132 S.Ct. 665 (2012). In the CompuCredit case, the Supreme Court held that the Federal Arbitration Act merely provided a different forum. It did not waive any right to pursue a claim. The employee also argued that the courts afforded liberal interpretation for veterans. The court did not disagree, but in agreeing to arbitration, the veteran did not give up any rights. See decision here.

In dissent, Judge Watford, pointed out that the USERRA does not follow the provisions of the Credit Repair Organizations Act closely enough. The USERRA, he pointed out, prohibits any contract that would limit any right under the USERRA. The right to sue in federal court is one such right. Unlike the Age Discrimination in Employment Act and other statutes, the USERRA includes the right to sue and also includes a non-waiver provision. This is the only employment statute to be considered for arbitration that contains both a provision conferring the right to file a suit and a non-waiver provision.

As I have mentioned previously on this forum, the premise that arbitration is just another forum is false. At least one study has found institutional bias in favor of repeat players in the arbitral system. Employers will be repeat players, not employees. The right we give up in signing those agreements is the right to a system over which we have some degree of control. In theory, if a judge performs badly, we can vote him out or vote out of office. Or, we could vote out of the office the president who appointed that particular judge. But, in arbitration, we have no control over who becomes an arbitrator. We do not have a vote.

One would hope for better from the U.S. Postal Service.  They employ many veterans.  They have a veterans hiring program.  But, in the case of Army Reserve Sergeant Major Richard Erickson, the USPS attempted to terminate his employment even before the wars in Iraq and Afghanistan started.  SGM Erickson was fired from his USPS job in Ft. Myers, Florida in 2000 because he had too much military leave.  He had worked for the USPS since 1988.  But, between 1996 and 2000, he worked only four days for the Postal Service.  He was on active duty with the National Guard.  Back in the days before the current statute, USERRA, there was no limit on how much active duty a National Guardsman could perform.  Now, under USERRA, there is a limit of five years, after which a Reservist or Guardsman can be terminated.  As SGM Erickson said, it was pretty hurtful to think he could be fired for serving his country. 

But, his legal odyssey was just beginning.  In 2005, the single father of three left active duty and went on unemployment benefits.  He entered the Army Reserve.  He filed his first complaint with the Merit Systems Protection Board in 2006.  He eventually ended up in front of the U.S. Court of Appeals for the Federal Circuit twice on appeals of various issues.  

In this latest ruling from the MSPB, the MSPB ordered that he be reinstated to the job he lost in 2000.  That reinstatement would include the back pay he would have earned if he had not been terminated.  The Army Times (20 Jan 2014 edition) says he could be entitlted to $1 million to $2 million in total damages, including attorney fees.  The court will allow an offset for the amount he has actually earned since 2000.  The award will likely be the largest ever assessed against the U.S. Postal Service.  

The latest issue for appeal was whether SGM Erickson timely submitted his request to return to his civilian job.  The Federal Circuit ruled that that issue did not matter.  What mattered was whether he lost his job due to his status as a member of the National Guard. 

As SGM Erickson said, this was not just about him.  It was about all service members who try to juggle two careers, one civilian and one military.  After he was terminated, he could not get a job with the federal government.  Speaking as a former Guardman and Reservist, we should not have to sacrifice our civilian career for our military career.  And, shame on the Postal Service for fighting so tenaciously over what appear to be technical, legal issues. 

A reader asks a question.  Her business employs a Reservist who will be gone for two weeks doing military training.  The employer understands it needs to give him his time off.  But, does the business also need to pay him his salary during his absence?  

Good question.  No, the Uniformed Services Employment and Reemployment Rights Act (USERRA) only requires that leave be extended, not salary or pay.  The federal government and some local governments continue to pay the salary during the military leave as an example to private businesses.  But, continuing the pay is not required. For more information, see the DOL USERRA Fact Sheet

The Sixth Circuit has rendered a decision regarding a veteran who sued under the Rehabilitation Act of 1973, 29 U.S.C. §791.  The Rehab act applies to federal employees who have disabilities.  The Americans with Disabilities Act was based in large part on the Rehab Act.  In this Sixth Circuit decision, the appellate court affirmed the lower court’s finding tossing out a $4.4 million verdict and instead, requiring Mr. McKelvey to return to his job at higher pay.  See the appellate court decision

James McKelvey lost a hand in Iraq in 2004.  He was trying to defuse a roadside bomb.  He was hired by the Tank Automotive and Armaments Command (TACOM) in 2006.  According to the evidence at trial, his supervisor and co-workers began to ridicule him.  They called him "lefty" and "cripple."  He was excluded from meetings. His supervisor assigned him menial assignments and less of it than his co-workers, even though they were "slammed" with work.  The worker complained.  His supervisor and another worker then began referring to him as a "f—ing cripple."  He went to EEO, who encouraged Mr. McKelvey to file a written complaint.  But, the veteran tried to work it out on his own.  The taunting worsened, coming every week. The employee filed a written complaint.  The atmosphere did improve somwhat.

Mr. McKelvey continued looking for a new job somewhere else.  He complained to the garrison commander in January, 2007, who told him he should just look elsewhere for a new job.  Mr. McKelvey found a new job in February, 2007 and quit his job with TACOM.  He filed suit later in October, saying he had been discriminated against.  

Two claims were dismissed or dropped.  He went to trial on the hostile work environment claim and the constructive discharge claim.  A jury found in his favor and awarded him $4.4 million as lost future pay on the constructive discharge claim.  The jury awarded no compensatory damages on the hostile work environment claim. 

After the trial ended, the employer, the Secretary of the Army, filed a motion attacking the findings.  The trial judge found in favor of the employer, finding insufficient evidence to support the constructive discharge claim.  The trial judge found that in the alternative, the proper remedy for constructive discharge is reinstatement to his old job, not future pay. 

So, on appeal, the Sixth Circuit agreed that the proper remedy for constructive discharge is reinstatement.  The legal standard for constructive discharge is that the working conditions are so bad that the employee feels compelled to resign.  The appellate court found that the conditions were very bad.  For some nine months, he was taunted and assigned menial jobs.  The garrison commander warned him to find a new job if he did not like the one he had.  The appellate court essentially found even with the interlude of better conditions, the employee did quit soon enough to satisfy the definition of "constructive discharge."  

But, regarding the front pay, the appellate court found that reinstatement is the preferred remedy.  Reinstatement should be granted in the "ordinary" case, said the three judge panel.  The appeals court said the Army had offered Mr. McKelvey a new job at higher pay under new supervisors.  The court dismissed the plaintiff’s argument that returning would be traumatic.  The court said the veteran would be working with four of six new co-workers and new supervisors.  

It is extremely rare for a trial judge to order reinstatement.  Very rarely does any employer want a worker back who has filed suit.  Just as rare is an employee who wants to go back to a poisonous atmosphere.  The point of future pay is to avoid poisonous work situations.  The court may have been more concerned about the large amount of future pay than the award of future pay itself. 

Those of us who deal with such high stress work situations frequently must wonder about the wisdom of sending Mr. McKelvey back to that job.  His lawsuit has, I am sure, attracted a lot of attention.  Emotions will be very high on both sides if/when he goes back to TACOM. 

Mr. McKelvey will receive some $100,000 in lost pay due to the higher salary.  But, I am sure he is extremely anxious about going back to where he was harassed so badly.  Constructive discharge cases are very difficult.  Courts rarely find that working conditions are so bad that a reasonable employee would feel compelled to resign.  In some ways, he is fortunate to have won a very hard claim to make.  But, as they say, be careful what you seek, because you just might get it.  The plaintiff may appeal by asking the full panel of appellate court judges to hear his appeal.