Two USERRA forms for notifying your employer of beginning and ending of military service

Stateside Legal, a web site supported by Pine Tree Legal Assistance of Maine and the Arkansas Legal Services Partnership has two interactive forms for servicemembers' notice to their employers. One is for informing your employer that you are leaving for military service and the other for informing the employer when you will be back and ready to go to work. See http://statesidelegal.org/search/statesidesearch/userra.

USERRA amended to allow suits for hostile work environment

Congress has amended and the President has signed a bill with dozens of provisions to help veterans be retrained, hired, etc. Tucked into the bill is an amendment to USERRA clarifying the definition of a “benefit” in USERRA. The bill adds the italicized words so that it now reads as follows:

The term “benefit”, “benefit of employment”, or “rights and benefits” means the terms, conditions, or privileges of employment, including any advantage, profit, privilege, gain, status, account, or interest (including wages or salary for work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice and includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the opportunity to select work hours or location of employment.

The genesis of the amendment can be traced to a recommendation from the Department of Labor for a “clarification” of the law because of inconsistent court decisions holding both that a cause of action for hostile work environment under USERRA did and did not exist. The Department’s report to Congress stated,

DoL considers it a violation of USERRA for an employer to cause or permit workplace harassment, the creation of a hostile working environment, or to fail to take prompt and effective action to correct harassing conduct because of an individual’s membership in the uniformed service or uniformed service obligations. Although the Department believes that the statute currently supports this reading, in light of the risk of contrary interpretations by the courts, the Department recommends that Congress consider clarifying that USERRA prohibits workplace harassment or the creation of a hostile working environment.

The practical effect of the amendment is to overturn the United States Court of Appeals for the Fifth Circuit’s decision in Carder v. Continental Airlines, Inc., 636 F.3d 172 (March 22, 2011), where the court held, on an issue of first impression, that service members could not sue their employers under USERRA for a hostile work environment,

My Cases: Employment

Byrne v. Galliher, 39 So.3d 1049, 258 Ed. Law Rep. 1267 (Ala. 2009), and Hill v. Galliher, 65 So.3d 362 (Ala. 2010) -- successive appeals on case attacking policies of Department of Postsecondary Education interfering with legislator-employees performing their legislative duties.

Harris v. Marion County Bd. of Educ., 644 So.2d 29, 95 Ed. Law Rep. 808 (Ala.Civ.App. 1994)

Alford v. Ingram, 931 F.Supp. 768 (M.D. Ala. 1996) -- attacked statute on revocation of teacher certificates; while technically losing the case, achieved a revision of the standards used by the state

Nelson v. Alabama Institute for Deaf & Blind, 896 F.Supp. 1108, 131 CCH Lab Cas ¶ 33,318 (N.D. Ala. 1995) -- Fair Labor Standards Act case seeking overtime for 25 employees

Estill v. Alabama State Tenure Commission, 650 So.2d 890, 98 Ed. Law Rep. 586 (Ala.Civ.App. 1994)

Akins v. Randolph County Board of Education, 643 So.2d 995, 95 Ed. Law Rep. 456 (Ala.Civ.App. 1994)

Barnes v. Walker County Board of Education, 661 So.2d 239 (Ala.Civ.App. 1994)

Kilgore v. Jasper City Board of Education, 624 So.2d 603, 86 Ed. Law Rep. 565 (Ala Civ App 1993)

Campbell v. Talladega City Bd. of Educ., 628 So.2d 842, 88 Ed. Law Rep. 516 (Ala.Civ.App. 1993)

Milligan v. Albertville City Bd. of Educ., 628 So.2d 625, 88 Ed. Law Rep. 502 (Ala.Civ.App. 1993)

Alabama State Tenure Commission v. Lee County Board of Education, 595 So.2d 476 (Ala App 1991), rev. sub nom Ex Parte Alabama State Tenure Commission, 595 So.2d 479, 73 Ed. Law Rep. 874 (Ala), on remand 595 So.2d 482 (Ala Civ App 1992) -- I represented the real party in interest, a teacher who had been fired; the result of the case was his reinstatement

Abney v. Baptist Medical Centers, 597 So.2d 682, 7 BNA IER CAS 641 (Ala 1992)

Ex parte Jackson, 625 So.2d 425 (Ala 1992), on remand sub nom., Jackson v. Alabama State Tenure Comm'n, 625 So.2d 430 (Ala Civ App 1993) -- gained tenure for teacher by favorable statutory interpretation of definition of earlier work as teacher with provisional certificate

Ex parte Turner, 601 So.2d 995 (Ala 1992), reversing Monroe County Board of Education v. Turner, 601 So.2d 997 (Ala Civ App 1992) -- represented amicus curiae in support of teacher's claim

Ex Parte Alabama State Tenure Commission (Re: Alabama State Tenure Commission v. Lee County Board of Education), 595 So.2d 479 (Ala 1991)

Greaves v. Jefferson State Junior College, 494 So.2d 409 (Ala 1986) -- unsuccessful age discrimination action

Belcher v. Jefferson County Board of Education, 474 So.2d 1063 (Ala 1985) -- established principle that public agencies must follow own rules, and employees have cause of action based upon failure to do so

High v. Jefferson County Board of Education, 373 So.2d 1089 (Ala 1979)

Spicer v. Board of Trustees of the University of Alabama, 347 So.2d 983 (Ala 1977)

Hanson v. Hearn, 521 So.2d 953 (Ala 1988) -- unsuccessful proceeding to require compliance with earlier consent decree on individual employment

Williams v. Ivey, 484 So.2d 468 (Ala 1985) -- represented county commissioner in action brought against him by employee

Heatherly, Director of the Alabama Department of Industrial Relations v. Benton, 479 So.2d 1285 (Ala Civ App 1985) -- proper treatment of back pay under unemployment compensation laws

Smith v. Civil Service Board of the City of Florence, 52 Ala App 44, 289 So.2d 614 (Ala Civ App 1974) -- successful appeal on trial procedure to be used in appeals from civil service board decisions

Carroll v. BellSouth Advanced Systems, Inc., 867 F.2d 1430, 1989 US App Lexis 1112 (11th Cir. 1989)

Childers v. Morgan County Board of Education, 817 F.2d 1556, 43 FEP Cases (BNA) 1702, 43 EPD (CCH) ¶ 37,211, 39 Ed. Law Rep. 72 (11th Cir. 1987) _- successful in overturning summary judgment against school bus driver in age discrimination in employment case

Byrd v. Morgan County Board of Education, 824 F.2d 974 (11th Cir. 1987)

Williams v. Eastside Mental Health Center, 509 F.Supp. 579 (N.D. Ala. 1981), rev. 669 F.2d 671, 93 Lab Cases (CCH) ¶ 34,147, 15 BNA WH Cases 358 (11th Cir. 1982); cert denied 459 US 976 (1982) -- Fair Labor Standards Act case in which District court ruled that the FLSA does not apply to a private corporation under contract to the State Department of Mental Health because it is performing an integral governmental function; reversed by 11th Circuit in decision defining “integral state function”

Bryant v. Western Electric Co., 572 F.2d 1087, 16 EPD ¶8302 (5th Cir. 1978) -- Title VII case, adequacy of charge

Tillman v. City of Boaz, 548 F.2d 592, 12 EPD ¶11,560 (5th Cir. 1977) -- Title VII case, adequacy of charge in letter form

Armour v. City of Anniston, 597 F.2d 46 (5th Cir. 1979), 20 EPD ¶30,022, vac. and rem. 445 US 940, remanded 622 F.2d 1226 (5th Cir. 1980), on remand 89 F.R.D. 331, 25 EPD ¶31,672 (N.D. Ala. 1980); 654 F.2d 382 (5th Cir. 1981) -- Title VII case against city hospital; class action representation after loss of individual case

Tortorici v. Secretary of HEW, 496 F.Supp. 7 (N.D. Ala. 1979), aff'd sub nom Tortorici v. Harris, 610 F.2d 278, 22 EPD ¶30,585 (5th Cir. 1980) -- Title VII case for white female claiming reverse discrimination

Langley v. State Farm Fire & Casualty Company, 26 EPD ¶31,837, 644 F.2d 1124 (5th Cir B 1981) -- sex discrimination in employment; pregnancy

Perry v. Golub and Falkowski v. Perry, 464 F.Supp. 1016, 18 EPD ¶8805 (N.D. Ala. 1978) -- due process, discharge of government employee

Stewart v. Bailey, 396 F.Supp. 1381 (N.D. Ala. 1975), aff'd 556 F.2d 281, rev'd on reh. 561 F.2d 1195 (5th Cir. 1977) -- teacher dismissal, due process

Allen v. United States Steel Corp, 665 F.2d 689, 33 Fed R. Serv 2d 218, 27 FEP Cases (BNA) 1293, 27 EPD (CCH) ¶ 32,338 (5th Cir B 1982) -- Title VII sex discrimination suit relating to pension and extended vacation benefits

Robinson v. City of Fairfield, 750 F.2d 1507, 40 Fed R Serv 2d 1202, 37 FEP Cases (BNA) 106, 36 EPD (CCH) ¶ 34,962 (11th Cir. 1985) -- represented city in Title VII case

McGee v. Purolator Courier Corp., 430 F.Supp. 1285 (N.D. Ala. 1977) -- attempt to obtain preliminary injunction to keep plaintiff's job while EEOC processed charge.

Johnson v. University College of University of Alabama in Birmingham, 706 F.2d 1205, 77 ALR Fed 259, 31 FEP Cases (BNA) 1744, 32 EPD ¶ 33,732 (11th Cir), cert. denied 464 US 994 (1983) -- revising award of attorneys' fees granted in employment discrimination case

Putman v. Vath, 340 So.2d 26 (Ala 1976) -- suit by Catholic priest against his bishop for breach of contract

In 1981, Isaac Asimov wrote the following limerick on a postcard to Still in celebration of Still’s victory in representing a teacher who had been fired for giving Asimov and John Ciardi’s book Limericks, Too Gross to a student:

WATCH OUT!

Don’t you mess round with Lawyer, Ed Still,

For he puts those opposed through the mill.

Twelve good men and true

Will frown upon you,

And then wait till you find out the bill.

Copyright 2002 Isaac Asimov Estate. All rights reserved. Used by permission.

First Amendment case against portion of Alabama's campaign finance law filed

My co-counsel and I filed a new suit against the provision of Alabama's campaign finance law forbidding PAC-to-PAC transfers. The law basically prohibits any transfer between political actors except personal contributions to any group, PAC contributions to principal campaign committees, and limited payments from principal campaign committees to political parties.

Our organizational client uses its funds to run GOTV drives.

The complaint is linked below.

1 Complaint and Appx A

Publications

Co-author, The USERRA Manual (Thompson West, annual editions since 2008) (with Kathryn Piscitelli)

Co-author, "Job Rights of Employees who Serve in the Military: USERRA Rights and Obligations," ATLA Docket (Ark. Trial Lawyers Ass'n), Spring 2008 (with Mary Dryovage and Kathryn S. Piscitelli) [This article has been published in two AAJ newsletters -- Employment Rights Section and Federal Tort and Military Advocacy Section]

Author, “Voting Rights Act of 1965,” “Right to Vote,” “Reynolds v. Sims,” in Encyclopedia of American Law (D. Schultz, ed.) (2002)

Author, “A Simple Agenda for Election Reform,” 50 The National Voter (2001)

Co-author, “Is There a Constitutional Right to Vote and Be Represented? The Case of the District of Columbia,” 48 Am. U. L. Rev. (1999) (edited transcript of conference session)

Co-author, “Alternative Electoral Systems as Voting Rights Remedies,” 18 FEC Journal of Election Administration (1997)

Co-author, “One Person, Seven Votes: The Cumulative Voting Experience in Chilton County, Alabama,” in Affirmative Action and Representation: Shaw v. Reno and the Future of Voting Rights (1997)

Co-author, “Alternative Voting: How it Works,” Voting Rights Review (Spring 1995) [HTML]

Co-author, “Cumulative Voting as a Remedy in Voting Rights Cases,” 84 National Civic Review (1995)

Author, “Alabama,” in The Quiet Revolution: The Impact of the Voting Rights Act in the South, 1965-1990 (1994)

Author, “Symposium: The Supreme Court, Racial Politics, and the Right to Vote: Shaw v. Reno and the Future of the Voting Rights Act,” 44 Am. U. L. Rev. (1994) (edited transcript of conference)

Author, “Cumulative and Limited Voting in Alabama,” in United States Electoral Systems: Their Impact on Minorities and Women (1992)

Author, “The Hunting of the Gerrymander”, 38 UCLA L. Rev. (1991) (review of Political Gerrymandering and the Courts)

Author, “Voluntary Constituencies: Modified At-Large Voting As A Remedy For Minority Vote Dilution In Judicial Elections,” 9 Yale L. & Pol’y Rev. (1991)

Author, “Alternatives to Single-Member Districts,” in Davidson and Grofman, eds., Minority Vote Dilution (1984)

Author, "Election Reform Bill Will Add Uniformity to U.S. Voting System," op-ed piece in Birmingham News, 20 October 2002

Author, "State must consider what-ifs in revising election laws," op-ed piece in Birmingham News, 17 November 2002

Contacting my office

Edward Still
Edward Still Law Firm, LLC
130 Wildwood Parkway
Suite 108 PMB 304
Birmingham AL 35209
phone 205-320-2882
fax 205-449-9752

Meetings by appointment only.

Email to me: Please do not email anything confidential to me until I have agreed to take your case. If you don’t want your employer to know what you are telling me, never use your work email to write me. Email: [my last name]@votelaw.com.

Keep your own timesheet

The U.S. Department of Labor has released an iPhone app called DOL-Timesheet. Here is the description from iTunes Preview: "This is a timesheet to record the hours that you work and calculate the amount you may be owed by your employer. It also includes overtime pay calculations at a rate of one and one-half times (1.5) the regular rate of pay for all hours you work over 40 in a workweek." By the way, the app is free, even though iTunes has a link to "buy and download."

If you have an Android phone, there are several free apps available to do the recording, if not the overtime pay calculation. I have not tried any of these, so I cannot warrant any of them. Go to the Android Market.

USERRA Manual 2011 now available

The USERRA Manual: Uniformed Services Employment and Reemployment Rights, 2011 ed.
By Kathryn Piscitelli, Edward Still

"This title provides practical background and practice information for attorneys assisting military personnel returning from active duty with employment-related issues. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) sets forth a detailed regulatory scheme of leave rights and mechanisms for enforcement of those rights. This title is a must-have for employment practitioners as a large number of Reserve and National Guard personnel will be returning from active duty within the next one to five years." -- West Store

Edward Still appointed to Alabama Advisory Committee to US Civil Rights Commission

The U.S. Commission on Civil Rights has appointed 15 Alabama citizens to its Alabama State Advisory Committee.

Kimberly Tolhurst, Delegated the Authority of the Staff Director of the U.S. Commission on Civil Rights, announced the appointment of Valerie Askew of Birmingham, Norman Baldwin of Tuscaloosa, David Beito of Northport, Lula Bridges of Notasulga, Margaret Brown of Birmingham, Jim Couch of Tuscumbia, Leida Javier-Ferrell of Mobile, Richard Finley of Birmingham, Randy Kelley of Gadsden, Shana Kluck of Vance, Raphael Maharaj of Mobile, Kevin Newsom of Vestavia Hills, Maurice Shevin of Birmingham, L'Tryce Slade of Birmingham, and Edward Still of Homewood. The Commission appointed Professor David Beito as Chairman. The appointments are for two years and members serve without compensation. -- U.S. Civil Rights Commission Announces Appointments to the Alabama State Advisory Committee -- WASHINGTON, April 27, 2011 /PRNewswire-USNewswire/ --

Update on Lynch v. State of Alabama

We are now two weeks into the trial of Lynch v. State of Alabama. The Huntsville Times has been covering the case every day. See their stories here. As we move to Birmingham for the third week of testimony, I wonder if the Birmingham News will pick up the burden of coverage.

Disclosure: The plaintiffs are represented by James Blacksher, Larry Menefee, and me.

Judge enjoins law meant to stop AEA from getting payroll deductions

The Huntsville Times reports: A federal judge issued a temporary injunction this afternoon halting a new state law that could potentially cripple a statewide teachers' organization.

U.S. District Judge Lynwood Smith issued the injunction against a law passed by the Alabama Legislature in December that bans school employees from having their Alabama Education Association membership dues directly deducted from their paychecks. The law was to go into effect on Sunday.

Dr. Paul Hubbert, executive secretary of AEA, said the organization had been hoping for a ruling on the injunction before the law goes into effect.

"Once the law goes into effect, we will lose January dues, which are collected in February," Hubbert said shortly before the ruling was filed. "We may also lose February dues, collected in March. A couple of months' worth of loss makes it hard to operate." Hubbert could not be reached immediately after the filing. -- Read the whole story --> Federal judge halts ban on payroll deduction to Alabama Education Association | al.com

Disclosure: I am one of the attorneys representing the AEA. A copy of the opinion is shown below:

AEA v. Bentley, Memo Opinion on Prelim Injuction

School-funding tax case coming to trial

The Huntsville Times reports: Alabama history is headed before a federal judge in Huntsville, as civil rights attorneys argue that the state's method of funding schools purposefully discriminates based on race.

At stake are the state's property tax rates, the lowest in the nation. Attorney James Blacksher of Birmingham contends that tax structure violates the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment, largely by limiting the ability of rural counties to tax wealthy white landowners.

"Because of the anemic property taxes available to most local school systems, low-income students throughout Alabama, who are disproportionately black, suffer from underfunding," contends the suit.

But the state argues that any forced change in tax rates would decrease all property values, injure all property owners who plan to sell, paralyze the commercial real estate market and cause "widespread havoc in Alabama's government and real estate markets." Read the whole story --> Alabama's method of funding schools challenged in court for racial discrimination | al.com (PDF copy)

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Amendments to USERRA

[The following was emailed as a newsletter to my clients.]
23 November 2010

Congress recently passed three important USERRA amendments that will benefit employees who are members of the military reserves or returning veterans. The Veterans’ Benefits Act of 2010 (H.R. 3219) clears up a couple of problems in the wording of USERRA. First, it makes clear that USERRA prohibits wage discrimination against servicemembers; and, second, that a multi-factor test applies in all cases in which a successor employer’s coverage is disputed. President Obama signed the bill on 13 October. (When he was a senator, President Obama had co-sponsored a bill containing these two amendments.)

What’s USERRA? The Uniformed Services Employment and Reemployment Rights Act protects those in the Reserves or Guard, as well as on active duty. It provides for the right to return to prior employment after a tour of military service and forbids discrimination against civilian employees because of their military service or obligation. For more information on USERRA, check the websites of the Department of Labor or the Department of Justice.

Salary discrimination now prohibited. When Congress adopted USERRA in 1994, the Act included a prohibition on discrimination against servicemembers by withholding a “benefit of employment.” The term “benefit of employment” was defined to exclude “wages or salary for work performed.” Basically, someone made a mistake in drafting. The legislative history describes this exclusion as covering “wages or salary for work not performed while absent from employment.”

In 2002, this definition cost someone some money. William Gagnon brought suit against Sprint Corporation, claiming that he was paid less than similarly experienced employees because of his military service. The courts ruled against his claim because of the definition of “benefit of employment.” Gagnon v. Sprint Corp., 284 F.3d 839 (8th Cir. 2002).

The Veterans’ Benefits Act corrects the definition by including “wages or salary for work performed” as a benefit of employment.

Successor employers defined – again. If an employee takes leave to go on active duty and his employer has been bought out, merged, or whatever by the time he or she returns, is the successor employer responsible for rehiring the servicemember? When this question came up in a case under the predecessor to USERRA, the Eighth Circuit listed seven factors to be considered. Leib v. Georgia-Pacific Corp., 925 F.2d 240 (8th Cir. 1991). Congress mentioned the Leib case in the Congressional reports supporting the passage of USERRA, and the Department of Labor’s USERRA regulations used the same seven factors. But prior to the adoption of the regulations, the Eleventh Circuit decided that an additional factor had to be considered – whether there was a merger or a transfer of assets. Coffman v. Chugach Support Services, Inc., 411 F.3d 1231 (11th Cir. 2005). Congress hopefully clears up the confusion by putting the Leib factors into USERRA.

Amendments effective now. Each of these amendments includes a provision that the amendments to USERRA applies to any violation of USERRA “that occurs before, on, or after the date of enactment.” It also applies to any claims “that are pending or after the date of the enactment.”

Federal employees’ claims. The VBA sets up a 3-year “demonstration project” so that certain USERRA claims against Federal executive agencies would be received by or referred to the Office of Special Counsel. It would also allow the Office of Special Counsel to receive and investigate certain claims under USERRA and related prohibited personnel practice claims. The Office of Special Counsel is an independent federal investigative and prosecutorial agency, with authority under four federal statutes: the Civil Service Reform Act, the Whistleblower Protection Act, the Hatch Act, and USERRA. There was a similar demonstration project a few years ago, but Congress allowed it to expire at the end of 2007.

Kathryn Piscitelli and I helped in the drafting of the USERRA provisions of the VBA along with the staffs of Representative Artur Davis and the late Senator Edward Kennedy.

Johnson v. Riley -- Plaintiffs' reply on motion for clarification and reconsideration

18 Reply on Mot-clarify

Johnson v. Riley -- Defendants' response to motion for clarification

17 Resp to Mot-reconsider

Johnson v. Riley -- Plaintiffs' motion for clarification and reconsideration

16 Mot Reconsider

Johnson v. Riley -- order setting briefing and argument on motion to dismiss

15 Order Re Mot-dismiss Brief and Arg

Johnson v. Riley -- motion to dismiss and our response

13 Motion to Dismiss

13-1 Exec Order 44

14 Pltfs Resp Defts Motion Dismiss

14-1 Pltfs Resp Defts Motion Dismiss Exh A

14-2 Pltfs Resp Defts Motion Dismiss Exh B

Johnson v. Riley -- amended motion for prelimary injunction

12 Pltfs Amend Motion for Preliminary Injunction

12-1 Pltfs Amend Motion for Prelim Inj Exh A

12-2 Pltfs Amend Motion for Prelim Inj Exh B

12-3 Pltfs Amend Motion for Prelim Inj Exh C

12-4 Pltfs Amend Motion for Prelim Inj Exh D