Reemploying after military service isn’t always enough to satisfy USERRA

Failing to give a salesperson returning from military service a similar book of business that would yield the same commissions he enjoyed before leaving for active duty was a violation of the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), according to the Second Circuit Court of Appeals. The employee returned from military service and requested reemployment, which his employer took four months to implement. When they finally did reemploy him, he was given the same job but a different set of clients with substantially lower opportunity for commissions. Due to restructuring of the company, the employee’s old clients had been redistributed to other salespeople and the company believed giving the employee this new book of business complied with USERRA’s reinstatement rights. They were wrong. According to the court, the reinstatement was not to the same seniority, status and pay that the employee enjoyed before leaving for active duty. The employer was ordered to properly reinstate the employee, as well as pay back wages and liquidated damages (Serricchio v. Wachovia, 2nd Cir, Sept. 2011).

Tips: Reinstating an employee returning from military service goes beyond just giving them their job back. You need to make sure they are returned to the same pay and benefits they would have enjoyed had they never left for military duty. If your business has significantly changed while the employee was gone, it may be difficult to determine what level the employee should be reinstated to upon returning from leave. Review our Legal Guide, “Veterans’ Employment Rights Law” (774) and contact your Vigilant staff representative with specific questions.