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Table of Contents:

  • Alabama school boards do not have 11th Amendment immunity against employee suits
  • A win for a USERRA client
  • Bills proposing amendments to USERRA
  • Two USERRA forms for notifying your employer of beginning and ending of military service
  • USERRA amended to allow suits for hostile work environment
  • USERRA Manual 2011 now available
  • Amendments to USERRA
  • Eight programs can help veterans
  • Supreme Court agrees to hear first USERRA case
  • PolitiFact.com rates Obama's campaign promise re USERRA
  • Certiorari petition filed in a USERRA case
  • Bill to patch some problems in USERRA has been introduced
  • A good place for reservists and guard members to work
  • CBS' 60 Minutes reports on "Reservists' Rocky Return to Job Market"
  • Speaking on USERRA
  • The USERRA Manual
  • New Mexico U.S. attorney may have been fired in violation of USERRA
  • Military Service
  • Speaking Engagements -- past
  • Bad news for civilian employees also in the Guard or Reserve
  • Alabama school boards do not have 11th Amendment immunity against employee suits

    For the last two years, Kathryn Piscitelli (of Orlando, FL) and I have been resisting the Madison City School Board's defense that it is an "arm of the state" and therefore immune from suit under the Eleventh Amendment to the US Constitution. A magistrate judge, a district judge, and now a panel of the Eleventh Circuit Court of Appeals has agreed with us that the Board is not immune. (We were assisted in the Circuit Court by Phil Hostak of Washington DC. Phil did a great job of arguing the case.)

    The opinion of the court is available on the court's website.

    The underlying lawsuit is a claim under the Uniformed Services Employment and Reemployment Act (USERRA). Our client, Mike Weaver has been called to the service of his county several times during the Iraq and Afghanistan wars. His complaint alleges that, beginning in 2007, his job duties had been reduced when he returned, that his status in the workplace has been decreased, and he has not received a raise since then (but all other central-office employees of the board have had pay raises). Now that we have won on this defense, we are looking forward to litigating the merits of the case.

    This entry was posted by Edward at 5:29 PM, 12 November 2014 | TrackBack (0)

    A win for a USERRA client

    For the last two years, Kathryn Piscitelli (of Orlando, FL) and I have been resisting the Madison City School Board's defense that it is an "arm of the state" and therefore immune from suit under the Eleventh Amendment to the US Constitution. A magistrate judge, a district judge, and now a panel of the Eleventh Circuit Court of Appeals has agreed with us that the Board is not immune. (We were assisted in the Circuit Court by Phil Hostak of Washington DC. Phil did a great job of arguing the case.)

    The opinion of the court is available on the court's website.

    The underlying lawsuit is a claim under the Uniformed Services Employment and Reemployment Act (USERRA). Our client, Mike Weaver has been called to the service of his county several times during the Iraq and Afghanistan wars. His complaint alleges that, beginning in 2007, his job duties had been reduced when he returned, that his status in the workplace has been decreased, and he has not received a raise since then (but all other central-office employees of the board have had pay raises). Now that we have won on this defense, we are looking forward to litigating the merits of the case.

    This entry was posted by Edward at 5:15 PM, 12 November 2014 | TrackBack (0)

    Bills proposing amendments to USERRA

    Three bills to amend USERRA have been introduced recently.

    HR 3670. The Transportation Security Administration (the folks at the airports who can see into you with their Super Detecto Rays) are presently exempt from abiding by USERRA. This bill would make the TSA subject to USERRA. [UPDATE: On 30 May, the House suspended the rules and agreed to this bill on a voice vote.]

    S. 2299. Currently, the United States Attorney General can bring suit against a State or State agency on behalf of a servicemember, but the case is styled as an action by the United States against the State of ___. S. 2299 would change the nature of the suit to one that is truly on behalf of the United States. The servicemember whose claim is the basis for the suit may intervene to obtain specific relief.

    S. 3233 (the Servicemembers Access to Justice Act). This bill would amend several provisions in USERRA, including the following provisions:

  • Section 2. “A State’s receipt or use of Federal financial assistance for any program or activity of a State shall constitute a waiver of sovereign immunity, under the 11th amendment to the Constitution or otherwise….”
  • Section 3. “Notwithstanding any other provision of law, any clause of any agreement between an employer and an employee that requires arbitration of a dispute arising under this chapter shall not be enforceable.”
  • Section 4. In cases where the plaintiff suffered no loss of wages, he or she could recover for any other “actual monetary losses.” In addition, this sction would change the amount of liquidated damages to at least $10,000. Finally, it would add a provision allowing punitive damages if the employer has 25 or more employees and the trial court “determines that the employer’s violation of this chapter was done with malice or reckless indifference to the rights of the person under” USERRA.
  • This entry was posted by Edward at 6:20 PM, 03 June 2012 | TrackBack (0)

    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.

    This entry was posted by Edward at 5:13 PM, 26 November 2011 | TrackBack (0)

    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.

    VOW to Hire Heroes Act of 2011, Pub.L. 112-56 § 251, Nov. 21, 2011.

    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,

    This entry was posted by Edward at 9:32 AM, 24 November 2011 | TrackBack (0)

    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

    This entry was posted by Edward at 8:49 PM, 06 May 2011 | TrackBack (0)

    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.

    This entry was posted by Edward at 11:03 AM, 24 November 2010 | TrackBack (0)

    Eight programs can help veterans

    AARP The Magazine reports on some little-known veterans' benefits: Last Memorial Day, Sue Christensen had a revelation. A retired nurse administrator, Christensen, then 83, was laying a wreath at the veterans' monument in East Norriton, Pennsylvania, when she heard a speaker at the remembrance ceremony say that many vets suffer lingering problems from their wartime service?and don't realize they could receive help from the Department of Veterans Affairs (VA). "It suddenly hit me," recalls Christensen. "For 57 years I've suffered from panic attacks. Could it be from my time in the Navy?" ...

    Christensen is one of 23 million veterans in the United States today, some 8 million of whom receive VA benefits. But congressional sources and critics say that many other deserving veterans are not availing themselves of assistance. Some, like Christensen, simply don't know they are eligible for benefits. "It never occurred to me that the VA could do anything for me," she says, noting she had never served in a war zone.

    As Christensen learned to her advantage, Congress has expanded veterans' benefits?including disability compensation, pensions, and health care?over the past two decades and has eased eligibility standards. This is a vitally important development. For many veterans, VA benefits could mean the difference between a life of abject poverty or a secure old age. For others it can mean the difference between suffering from an undiagnosed service-related illness or receiving treatment from a specialist in war trauma.

    Read the whole article and pass it along --> Giving Back to Vets -- AARP

    This entry was posted by Edward at 1:44 PM, 29 May 2010 | TrackBack (0)

    Supreme Court agrees to hear first USERRA case

    The Peoria Star reports: The U.S. Supreme Court will decide whether a former Proctor Hospital employee was fired because of his military service and in the process, resolve a long-standing legal issue which has the nation's appellate courts divided.

    The high court announced Monday it would hear the case of Vincent Staub, who worked as an angiography technologist at Proctor and who was in the U.S. Army Reserves in 2004 when he was fired from his job of 15 years.

    Staub maintained his termination was a result of his immediate supervisor's disliking his obligations to the Army - he was a member of the 801st Combat Support Hospital - and the burden that those duties placed upon the hospital.

    Staub said the reasons given for his dismissal, insubordination and not doing his job, were a smokescreen for the real reason; his boss didn't like him being gone for months in 2003 when he was deployed to help soldiers headed to Iraq. You can read the whole story at --> Supreme Court to review Proctor Hospital's firing of Army reservist - Peoria, IL - pjstar.com

    The court filings for the case are available on SCOTUSwiki.

    This entry was posted by Edward at 11:18 AM, 25 April 2010 | TrackBack (0)

    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:

    This entry was posted by Edward at 7:14 AM, 15 January 2010 | TrackBack (0)

    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 )

    This entry was posted by Edward at 12:00 AM, 25 July 2009 | TrackBack (0)

    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.)

    This entry was posted by Edward at 7:09 PM, 19 February 2009 | TrackBack (0)

    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.

    This entry was posted by Edward at 7:03 PM, 19 February 2009 | TrackBack (0)

    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.


    This entry was posted by Edward at 5:13 PM, 09 November 2008 | TrackBack (0)

    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.

    This entry was posted by Edward at 7:18 PM, 22 June 2008 | TrackBack (0)

    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.

    This entry was posted by Edward at 2:06 PM, 02 April 2008 | TrackBack (0)

    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

    This entry was posted by Edward at 12:23 PM, 09 April 2007 | TrackBack (0)

    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."ť 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.

    This entry was posted by Edward at 9:30 AM, 28 October 2006 | TrackBack (0)

    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.

    This entry was posted by Edward at 5:41 PM, 23 September 2006 | TrackBack (0)

    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.

    This entry was posted by Edward at 7:37 AM, 18 January 2006 | TrackBack (0)


    The picture above was made in 1914 by the Birmingham Engraving Co. This reproduction is from the Library of Congress Prints and Photographs Division Washington, D.C. 20540 USA.

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