Justice for war vets… unless they signed the wrong contract
Two stories that made national headlines provide an interesting lens for discussing the importance of access to the courts. They both deal with Iraq vets' USERRA (Uniform Services Employment and Remployment Rights Act) claims against employers. Under USERRA, employers must preserve or make available a deployed person’s position once he or she returns from service in the military. Employees can take former employers to federal court and demand back pay and reinstatement if the employer fails to comply with this federal statute.
The first story (from Saturday’s New York Times National Report): Michael Serrichio returned from service in the Air Force Reserve only to find that his Wall Street firm (which has since merged with Wachovia Securities) was offering him a lower-paying, less advanced position than he had when he was called to duty. He took it to the civil justice system, where a jury decided that Mr. Serricchio's employer intentionally made him a job offer they knew he wouldn’t be able to accept, an offer substantially different from his prior position. The jury awarded him double his back pay and reinstatement of his old job. As his lawyer said, this victory not only served as retribution for Mr. Serrichio, it also sent a message:
“This is a message to employers across the country that you have to protect the rights of people who are called up for service.”
Now, that story can be filed away in your “civil justice victories” folder.
What about the second story? Lt. Col. Michael Garret also had to take leave from work because he was called to duty, also was denied his job upon returning from service, and also wanted to bring a USERRA claim against his employer, Circuit City. But unlike Mr. Serricchio, Lt. Col. Garrett was not able to resolve his case in federal court. Circuit City had imposed a binding mandatory arbitration clause on Mr. Garrett's employment contract, sending his claim to arbitration rather than to federal court.
Not knowing the resolution of Mr. Garrett's claim, let's assume he wins. There are still some points that warrant reflection:
First, even if Garrett wins in arbitration, what are the chances that his victory would have as significant an impact as a court-based victory would have? Substantively, this is a question of whether he would be as likely to win backpay and reinstatement in arbitration as he would be in court. The more likely outcome would be a settlement payment where Circuit City still saves money they would have owed to Garrett. And in terms of symbolic impact, this is a question of whether Garrett's arbitration victory would make the headlines of a national news source, or send a larger message to employers in other industries about their legal obligations to their employees.
Second, prior case law says that USERRA should be interpreted in the manner that best protects the military. (For law geeks, see Alabama Power Co. v. Davis, 431 U.S. 581, 584-85 (1977) and King v. St. Vincent’s Hospital, 502 U.S. 215, 221 n.9 (1991), which both followed Fishgold v. Sullivan Drydock and Repair Corp., 328 U.S. 275, 285 (1946), where the Court noted: "This legislation is to be liberally construed for the benefit of those who left private life to serve their country in its hour of great need.") Even when some individuals beat the odds and win, does sending these claims to arbitration really benefit military personnel? Consider the minimal procedural protections they have and the fact that the arbitrator is not required to follow precedent or offer his/her reasoning when issuing a determination. Under such a system, those who prevail in arbitration appear to be the lucky ones who slipped through the cracks.
Third, if Congress has protected the military against the perils of binding mandatory arbitration in the context of predatory loans, shouldn't it do the same in the context of employment claims? Especially when those claims relate directly to their ablity to serve the country? What message are our courts sending about how much we appreciate their service and sacrifice?
Much to reflect upon, and still much work to do. Kudos to Mr. Serricchio and his lawyer for working on the front lines to defend civil justice for war vets.