PolitiFact.com rates Obama's campaign promise re USERRA

PolitiFact.com has discussed Pres. Obama's campaign promise to put "additional resources into enforcement and investigation in order to crack down on employers who are not following the letter and spirit of the law" in regards to military reservists. Edward Still was one of the sources interviewed for this short article. For the whole story, go to --> PolitiFact | Dedicate more resources to fight employment discrimination against military reservists - Obama promise No. 118:

Certiorari petition filed in a USERRA case

Vincent Staub has filed a certiorari petition in the U.S. Supreme Court in a USERRA case. The Question Presented in the petition is, "In what circumstances may an employer be held liable based on the unlawful intent of officials who caused or influenced but did not make the ultimate employment decision?"

You may view or download the opinion here:staub.pet )

Bill to patch some problems in USERRA has been introduced

On January 15th, Sens. Robert Casey and Edward Kennedy introduced the Servicemembers Access to Justice Act of 2009 (S. 263) ("SAJA") to clarify and strengthen USERRA. Sen. Barack Obama co-sponsored a substantially identical measure last year. You can track the bill on the govtrack.us website.

Among amendments to USERRA that SAJA would make are the following: (1) a federal-funding hook to trump states’ 11th Amendment immunity; (2) clarification that USERRA prohibits wage discrimination; (3) prohibition of mandatory arbitration; (4) clarification that Section 4302 of the Act applies to both substantive and procedural rights; (5) revamping of the liquidated damages provision by removing the requirement that willfulness be shown and, instead, requiring that liquidated damages be awarded (with a mandatory minimum of $10,000) in all cases in which a violation is found, unless the employer can prove good faith; (6) provision for liquidated damages for federal employees (there is none currently); (7) establishment of a right to a jury trial in cases against private, state, and local government employers (regardless of the type of relief sought); (8) provision for awards of punitive damages in cases where an employer acted with malice or reckless indifference to the plaintiff’s rights; (9) mandatory awards of attorney’s fees to prevailing plaintiffs (currently discretionary); and (10) clarification that a merger or transfer of assets is not necessary to impose successor liability (this would override the 11th Circuit's holding to the contrary in Coffman v. Chugach Support Services, Inc., 411 F.3d 1231, 1237 (11th Cir. 2005)); and (11) strengthening of the Act's injunction provision by providing that denials of reemployment and discharges "shall constitute irreparable harm." (This summary was written by my co-author Kathryn Piscitelli.)

A good place for reservists and guard members to work

Marketplace, the public radio business/economy program reported today on an employer that not only does not hassle those in the military, but recruits and supports them. If we had more employers like Atkins and Pearce and fewer like the ones "60 Minutes" reported on, we would not have as much need for USERRA as we do. The Marketplace story can be read or listened to at Marketplace: Service members find work in business.

CBS' 60 Minutes reports on "Reservists' Rocky Return to Job Market"

To read or watch the whole story, "Reservists' Rocky Return To Job Market, 60 Minutes Report Also Examines Costs Borne By Employers Of Deployed Citizen Soldiers," just click on the link.

Speaking on USERRA

Edward Still and Kathryn Piscitelli will be giving a presentation on "Trying a USERRA Case" at the annual meeting of the National Employment Lawyers Association in Atlanta, GA, 26-28 June 2008.

The USERRA Manual

Kathryn Piscitelli and I have authored The USERRA Manual published by Thomson West.

Here is the publisher's description of the book:

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.

New Mexico U.S. attorney may have been fired in violation of USERRA

To get an idea of how wide a net is cast by USERRA, look at this AP article: New Mexico's former U.S. attorney, David Iglesias, is talking with the government's independent counsel about whether Justice Department officials violated federal law when they fired him late last year.

A deputy in the Office of Special Counsel, which protects federal government whistleblowers, first contacted Iglesias in early March as part of an inquiry into whether his firing may have violated a law that protects military reservists from discrimination. ...
Iglesias was one of eight U.S. attorneys fired last year as part of a Justice Department and White House plan to weed out some federal prosecutors in President Bush's second term. The firings are the subject of a congressional investigation.

Justice Department officials have said they added Iglesias to the list of prosecutors to be dismissed because his supervisors deemed him an "absentee landlord," who delegated too much authority to his second-in-command.

Iglesias acknowledges traveling out of New Mexico on U.S. attorney business and that he has spent some 40 to 45 days a year in his service in the Navy Reserve.

The Uniformed Services Employment and Reemployment Rights Act prohibits an employer from denying any benefit of employment on the basis of an individual's military service. -- Reservist May Have Been Wrongly Fired

Military Service

Senator Elbert D. Thomas of Utah explained that the requirement that an employer rehire a veteran when his military obligation was over was "reasonable because these individuals were defending the lives, property, and freedom of all Americans, including their employers."� 123 Cong. Rec. 10,573 (1940).

The Uniformed Services Employment and Reemployment Rights Act provides those called to military service with rights regarding their civilian employment and reemployment. Your rights include

* prompt reinstatement by your civilian employer
* reinstatement in a position of the same status you left
* seniority as if you had not gone into the military
* health insurance reinstatement
* continuation of your health company insurance plan while you are in the military (at your expense) for up to 180 days
* your employer must make reasonable efforts to retrain you
* you have special protections against discharge

There are limitations in this act; it requires prompt action on your part and military service of no more than five years. For more information, I recommend you review the U.S. Department of Labor's USERRA Advisor, or you may contact me.

There are no USERRA cases listed on my case list because I have been able to settle each one I handled. I have written an extensive paper on the Act and presented it to a meeting of the National Employment Lawyers Association.

Speaking Engagements -- past

Mr. Still has been a guest lecturer on the history of voting rights litigation and on election methods at the Georgetown University Law Center, University of Virginia School of Law, Washington and Lee University (undergraduate and School of Law), Cumberland Law School, Birmingham-Southern College, University of Alabama at Birmingham, Pomona College, and University of Massachusetts at Boston.

He has also been a panelist or speaker at meetings of the State Conference of NAACP Branches in Alabama (1998), South Carolina (1999), North Carolina (1999), Florida (1999, 2000), Mississippi (1998), and Tennessee (1998); the Georgia Legislative Black Caucus (1997); the Southeast Regional NAACP Annual Convention (1998); the Voting Rights Conference of the Lawyers’ Committee for Civil Rights Under Law (1999); American Bar Association Section of Administrative Law and Regulatory Practice (1999); the National Conference of State Legislators (1999); the National Black Caucus of State Legislators (2000); the National Election Standards Task Force of the National Association of Secretaries of State (2000); the Congressional Black Associates (2001); the National Association of Counties (2001); the National Association of County Civil Attorneys (2001 and 2002); and the International Municipal Lawyers Association (2001 and 2002); Women in Politics Leadership Institute, University of Alabama (2003); Center for Voting and Democracy, “Training the Trainers” workshop (Atlanta, Georgia) (2003); Alabama Democratic Confernece (2005).

He has been a panelist at several annual meetings of the American Political Science Association, the XIIIth World Congress of the International Political Science Association, an annual meeting of the Southern Political Science Association, and a conference at the National Center for Geographic Information and Analysis (at SUNY Buffalo).

Mr. Still has given numerous continuing legal education programs on Supreme Court cases, expert witnesses, federal jurisdiction, and the rights of public employees. He spoke at the Election Law & Litigation program of Fulcrum Information Services, Inc. (2001); the NELA-Georgia CLE conference on “Using the ’Class of One’ Equal Protection Theory in Public Employment Cases” (2005); the National Employment Lawyers Association annual meeting on “USERRA Basic Training for Employment Lawyers,” co-written with Mary Dryovage and Kathleen Piscitelli and presented at the 2005 annual meeting.

Bad news for civilian employees also in the Guard or Reserve

When employers don't understand the rules (even as simply presented as the new regulations), they are likely to violate the law and hurt their employees. HR.BLR.com did a survey found Majority of Employers Not Ready for New USERRA Regs:

Only one-third of employers are fully prepared for important new regulations that become effective this week governing the employment and reemployment rights of military service members, according to a poll at HR.BLR.com.

Final regulations under the Uniformed Services Employment and Reemployment Rights Act of 1994, as amended (USERRA) were issued by the Department of Labor (DOL) in December of 2005. These are the first comprehensive regulations ever issued describing the employment and reemployment rights of military service members under federal law. The final regulations become effective for all employers on January 18, 2006.

Asked "How prepared are you for the new USERRA regs that become effective January 18?" just 33 percent of HR.BLR.com visitors responded that they were "Completely prepared" for the regulations. Another 24 percent responded that they were "Somewhat prepared."

Meanwhile, over a quarter (26 percent) of respondents said that they didn't know whether they were prepared and 17 percent said they were "Not at all prepared" for the regulations.

If your employer is not obeying the Uniformed Services Employment and Reemployment Act, contact me about your rights. More information is on my Military Service page.