Until now, it wasn’t clear whether employers could ask employees returning from military service to waive their re-employment rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Now a ruling from the federal 6th Circuit Court of Appeals has offered guidance for employers that want to provide severance payments in lieu of re-employment.
Recent case: George Wysocki worked for IBM as a data administrator and then served in the U.S. military in Afghanistan. When he returned home, he asked IBM for his old job, but requested additional training so he could catch up with the latest developments in the field.
IBM refused and instead offered a severance agreement. Wysocki agreed to take $6,000 in exchange for giving up all clams against IBM of any kind, including any based on “veteran status.”
He then turned around and sued, alleging he had been denied the right to reinstatement under USERRA. IBM argued he had given up his right to sue in return for the payment.
The court looked carefully at the language in USERRA, which the court interpreted as allowing veterans to give up their right to sue in exchange for something more beneficial than pursuing their USERRA rights in court.
In this case, the court said Wysocki apparently believed accepting $6,000 was more beneficial than retaining the right to litigate the matter. IBM won the case. (Wysocki v. IBM, No. 09-5161, 6th Cir., 2010)
Final note: Now is a good time to check with your attorneys about including USERRA waivers in any severance agreements you offer to employees. Your lawyer can draft language designed to take advantage of this decision and can help negotiate settlements. The court ruled narrowly in this case, perhaps because Wysocki didn’t argue that the $6,000 was an inequitable trade-off.