Working Hard For Working People

Police Officers Not Entitled to Testing Accomodations Under USERRA

In Sandoval v. City of Chicago, Case No. 08-2699 (7th Circuit March 30, 2009), the Seventh Circuit Court of Appeals addressed the unique issue of whether or not police officers seeking promotion through competitive examination, while on military duty, were entitled to testing accommodations under the Uniformed Services Employment and Remployment Rights Act (USERRA).  At issue, were two police officers seeking promotion while on active duty.  Because the test was given while they were out of the county, both officers sought permission to take the test abroad.  The City arranged for the officers to take the test in "nearby" countries.  One officer took the test in San Salvador and one in Frankfort.  When the officers did not do as well as they would have liked, they fled suit against the City alleging that they were denied benefits of employment due to their military service. In particular, the officers claimed that the locations of the testing did not allow them an equal opportunity to do well on the test.

The Court of Appeals affirmed the dismissal of the officer's suit.  Although discrimination against individuals in uniformed services is prohibited under USERRA, that was not the essence of the officer's suit.  Rather, the officers were seeking a testing accomodation.  Because the officers sought an accomodation and not the same treatment as everyone else, they failed to state a claim under USERRA.  The court rules that "the statute on the books forbids discrimination without requiring accomodation."  Id. at 4.

District Court takes Stand on Protecting Veterans USERRA Rights--Awards $1.3 M

Michael Serricchio was a financial advisor for Prudential Securities (which became Morgan Stanley and is now Wachovia Securities) and reservist in the US Air Force when he was called to active duty following September 11, 2001. Upon his return from active duty, he sought reinstatement to his position, as required by the Uniformed Services Employment and Reemployment Rights Act (USERRA). USERRA requires that, under most circumstances, employers reinstate their serviceperson-employees returning from active duty to the position the employee would work if his or her service for the employer was not interrupted by their military service. In June 2008, a judge found that Wachovia violated USERRA. The matter of damages was recently decided by the District Court for Connecticut, which entered the largest judgment against an employer violating USERRA.

In Serricchio v. Wachovia Securities,  3:05cv1761 (D.Conn March 19, 2009) the Court noted that USERRA authorizes reinstatement by permitting a court to require the employer to comply with the provisions of USERRA and by also granting a court “full equity powers . . . to vindicate fully the rights or benefits” of veterans seeking reemployment. The Court found that Wacchovia’s violation of USERRA was  willful, entitling Serricchio to a doubling of the back-pay award, and additionally ordered Serricchio reinstated to his financial advisor position. The economic crisis was a factor in the Court’s decision, but the Court nevertheless ordered Serricchio reinstated. Because Serricchio’s job was largely commission based and because he would, effectively, be starting over and bringing in new clients rather than those clients he brought in before he was called to active duty (his colleagues carved away his client lists while he was gone), the Court crafted a remedy which requires Wachovia to provide him with certain benefits and a draw for at least 1 year to make up the difference in salary he will lose out on due to the company’s violations of USERRA.  The damages award exceeds $1.3 Million.