State Reemployment Rights and Laws for Service Members

Western Pennsylvania USERRA Case Scheduled to Trial in Federal Court February 5th, 2007 Now Settled

LTC Micheal McLaughlin was fired from his Greenville, PA job when he returned to from work from two weeks of National Guard Duty in August of 2001. PA Law does cover (TItle 51, Chapter 73) private employees as New York and Illinois as other state laws do. Again, consult a qualified attorney for interpretation of any law. This is a Federal Law case and according to Federal Court documents the case was originally filed in 2004 and now it is being heard proving out the GAO Report. Dates can be obtained under the Federal Court Records Pacer System. Federal Judge has allowed this case to go to jury trail. Trail was to be held on February 5th, 2007.

LTC McLaughlin was sent to Iraq In June 2005 and was killed in Iraq on January 5, 2005 when a suicide bomber attacked a police station in Ramadi, Iraq. He was fired because the employer is claiming that there was a personality conflict with a major client of the company. The company is Newark Paper Products of Greenville, PA. This was reported by a Youngstown,Ohio (WFMJ-TV) station in an on the air broadcast.

The settlement was reported by The Herald, Sharon, Pennsylvania Local Paper, Joe Pinchot, Reporting. A full story by the paper has been published. Read It Here

The Reserve Officer's Association has given complete Law Review of this case in their February 2007 Issue of the Officer. According to Capt. Wright,JAGC, USNR (RET) Employers are getting creative in their discharges of service member employees and "lawyering up" in the process. "KIA and USERRA, A CLAIM CAN SURVIVE The DEATH Of The PLAINTIFF", By Capt. Samuel F. Wright, JAGC, USNR My thanks to ROA again for their heads up on this story.

The Ideal State USSERA Law

New York, Illinois, and Washington have elements of the ideal state law. If we were authoring the ideal state USSERA Law it would have the elements of these states. Some interesting reasons why these state laws exist and the enhancements of our ideal state law would have.

Reasons for State USERRA Laws

• Cost of Litigation- Far More attorneys practice in State Court than in Federal Court. Federal Court Attorneys charge higher fees. Would not need the U.S. Attorney to review cases.
• More forums available to the service member through concurrent jurisdiction. There are more State Courts than Federal Courts. Service members could have access to local level courts for their courts for their cases in these matters. Federal Courts Dockets are much more crowded. Laws in other state statutes give priority to service members in these matters of reemployment.
• U.S. Attorneys do not have time to represent service members in court.
• Alternate Dispute Resolution Process is more available in State Court.
• State employees and municipal employees that are National Guard and Reservist could be protected. When a service member is deployed the state agency or municipality may hire a qualified temp worker. The substitution on staffing can be done without damaging staffing levels. A provision can be added to protect time served while be deployed toward civil service retirement.

USERRA STATE LAW ENHANCEMENTS

• Provisions could be added to protect promotions and raises to service members would have received while serving.
• Immediate due process could be provided upon return from military duty. (Case advanced on the docket at the local court) Upon prima facie case the service member is paid by employer until trial.
• Attorney fees, compensatory damages, wages, and fringe benefits to be paid upon prevailing in trail.
• Penalty should the employer fail to comply with state statutes.
• Military family leave act
• A non-custodial Statute so service members who are  in this category could make up time with their children as illustrated in the Indiana Statute