Employer Violates Reinstatement of Employee after Military Leave

Employer Violates Reinstatement of Employee after Military Leave The employee began working for the company in January 2006 as a sprinkler/ service sales representative, earning an hourly wage as well as a 10 percent sales commission.

The employee, a former Marine, re-enlisted in the National Guard in January 2007, and was deployed to Iraq in May 2007. Upon the employee’s return from military duty, he informed the company of his availability to return to work on May 12, 2008.

The company, however, told the employee that it hired someone else to fill his position during his deployment and that it had no available position for him. The employee in a May 22nd, 2011letter to the company formally requested reinstatement to his pre-service sprinkler/service sales representative position and notified the company of his intent to report to work on June 30th, 2011.

When he reported to work, the company offered him a position as a sprinkler helper because it purportedly had no sales representative positions. Although the sprinkler helper position included a $3 increase in hourly pay, it included limited commission opportunities. The employee accepted the company’s offer, but he repeatedly expressed his dissatisfaction with the position and his desire to be reinstated as a sales representative.

In response to these requests, a company owner allegedly told the employee he “needed to prove himself” because when he went to Iraq it “had suffered because of it.” Another owner purportedly said to the employee in an extremely angry phone call that he “needed to shut his mouth” with regard to his reinstatement requests because it was not going to happen. The company fired the employee in October 2008 for alleged excessive absenteeism. The employee sued the company in February 2009 under the Uniformed Services Employment and Reemployment Rights Act of 1994, and a jury found that the company willfully violated USERRA when it failed to reinstate the employee to his pre-service position based on testimony that the Labor Department informed the company of its reinstatement obligation before they fired him.

The court entered a final judgment of $505,748.00 plus interest and attorney fees. (Fryer v. A.S.A.P. Fire & Safety Corp., 1st Cir., No. 10-2047, 9/9/11).

The First Circuit Court of Appeals applied the term willful to mean a “reckless disregard of, or deliberate indifference to, an employer’s statutory obligations.” The formal requests made by the employee and the disregard for the law and the ultimate firing of this veteran, demonstrates the need of USERRA to protect people who take a military leave and return to their place of employment.

The Law office of Lindy Korn is located inside the Electric Tower at 535 Washington St. Korn can be reached at 856-5676 or through her website at www.lkorn-law.com.