Back in 2009, I reported on a large verdict in favor of a reservist who was fired after he was called to duty after the 9/11 attacks.Court Approves USERRA Verdict

This month, the Second Circuit affirmed the verdict — making it one of the largest verdicts upheld under USERRA (the- Uniformed Services Employment and Reemployment Rights Act).

The decision in Serricchio v. Wachovia Securities, is quite lengthy and worth a read because it discusses issues regarding this statute for the first time.  The court highlights two issues:

First, we must decide whether USERRA requires an employer, who compensated a servicemember on a commission basis prior to his activation, to consider the size of the servicemember’s pre-activation book of business in determining the appropriate postservice reemployment position. USERRA guarantees servicemembers a position of like “seniority, status, and pay” upon their return from active duty. See 38 U.S.C. § 4313(a)(2)(A). Is a reemployment position that provides the same commission rate (i.e., the same fixed percentage on accounts serviced), without regard to the volume or size of the accounts in the servicemember’s pre-activation book of business, sufficient to satisfy USERRA, as a matter of law? The district court concluded that it was not…. For reasons  discussed in full detail below, we agree.

This is an important point to emphasize. USERRA creates an environment where a returning servicemember must be treated, in essence, as if they had never left.  It is generous in its language and the Second Circuit’s position here is consistent with the approach it has used in interpreting other anti-discrimination statutes.

The second issue the court was asked to decide was:

whether it was an abuse of discretion for the district court to award Serricchio reinstatement to his prior financial advisor position with a fixed salary, even though his pre-service compensation was wholly commission-based. On this point, we note that where, as here, a jury has returned a verdict in favor of the servicemember, the statute authorizes a district court to use its “full equity powers . . . to vindicate fully the rights of” veterans. 38 U.S.C. § 4323(e) (emphasis added). Wachovia has identified no evidence overlooked, or legal precedent misinterpreted, that would lead us to the conclusion that the district court abused its discretion in fashioning the terms of Serricchio’s reinstatement.

What’s the Takeaway for Employers? Employers need to be very sensitive to the language in USERRA; it is among the strongest in terms of favoring an employee and the remedies for violations — as seen here — will be intepreted broadly.  For more information about USERRA, you can see an early post of mine in 2007 discussing it.