USERRA – Protecting the Rights of our Uniformed Men and Women

Imagine coming back from a war zone, finally back on American soil and looking to get back to civilian life. You have a well-established job outside of your military occupation, so getting back to a normal work routine is something you almost look forward to after months of deployment. Only, when you notify your employer you’re back from duty and ready to resume your job — you find your position has been filled or eliminated or even worse, you were terminated. Your employer may have violated your rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA).

USERRA protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service or certain types of service in the National Disaster Medical System. USERRA additionally forbids employers from discriminating against past and present members of the uniformed services, and applicants to any armed forces branch in America, including National Guard and reserves forces. An employer may not deny initial employment, reemployment, retention in employment, promotion or any benefit of employment because of this status.

You have the right under USERRA to also be reemployed in your civilian job if you leave to perform service in the uniformed service and ensure that apt written or verbal notice is given to your employer, you have five (5) years or less of cumulative service in a U.S. military branch while employed with that particular employer, you return to work (or apply for reemployment) in a timely manner after conclusion of service and you have been separated from service with a disqualifying discharge or under other than honorable conditions. If you are eligible to be reemployed, you must be restored to the job and benefits you would have obtained if you had not been absent due to military duty, or in some cases, a comparable job.

In 2011, in a decision that will likely impact thousands of veterans for generations to come, one of the nation’s highest courts has ruled in favor a highly decorated war hero by finding the U.S. Postal Service violated his rights under USERRA. The case, Erickson v. United States Postal Service, involves Army Special Forces (otherwise termed a Green Beret) Sergeant Major Richard Erickson. Erickson, who has been awarded multiple medals for Combat Distinguished Valor and is a Purple Heart recipient, was fired from the Postal Service for “excessive absence due to military service,” a blatant violation of federal law. Erickson began working for the USPS in 1988 and was at that point in the National Guard. Between the years of 1996 and 2000, SGM. Erickson only worked for about 4 days due to military commitments. In March of 2000, USPS fired him.

Erickson filed a Merit System Protections Board (MSPB; a judicial agency established to protect federal merit systems against partisan political and other prohibited personnel practices and to ensure protection for federal employees against abuses by agency management) appeal under USERRA, asserting that he was improperly removed because of his military service and requesting that he be reinstated. The MSPB administrative judge (AJ) found that USPS violated USERRA by removing Erickson from his position but denied him any relief. The AJ’s decision was based on the determination that Erickson subsequently waived his reemployment rights under USERRA by abandoning his civilian employment in favor of a military career.

Since 2007, MSPB administrative judges have twice ruled on the case (in 2007 & 2012) and on January 3rd, 2014, a decision marked the Board’s third ruling (previously in 2008, 2010, and 2013). Two of those Board decisions were prompted by remands from the U.S. Court of Appeals for the Federal Circuit (in 2009 & again in 2011). The January 3rd decision denied the Postal Service’s appeal; the Board dismissed their argument that the highly decorated veteran should not be entitled to reinstatement as relief for the agency’s discriminatory firing of him because of his courageous military service. The Board noted that the Post Office was wrong in its interpretation of USERRA, and correctly provided full relief to Sergeant Major Richard Erickson.

In the latest victory for Erickson, the Post Office filed a petition for review (PFR) in January 2013 about a December 2012 Judge’s decision in Erickson’s favor. In the PFR, the Post Office opposed Sergeant Major Erickson’s reinstatement based upon a flawed interpretation of USERRA according to the final MSPB decision. The Board gave the Postal Service 20 days to reinstate Sergeant Major Erickson and 60 days to provide him with back pay and benefits, which is long overdue to right a wrong that occurred nearly 14 years ago. Damages & attorney’s fees could cost the Postal Service upwards of $1,000,000.

If you feel your USERRA rights were violated, there are several avenues to take to pursue a complaint. The U.S. Department of Labor Veterans Employment & Training Service (or VETS) is authorized to investigate and resolve complaints. If VETS is unable to resolve the complaint, you can request for your complaint to be referred to the Department of Justice or the Office of Special Counsel for representation. You may also bypass the VETS process and bring a civil action against an employer.

CAN YOU BE FIRED FOR LEAVING WORK TO VOTE?

ballot-casting

Soon the polls will open for a number of local, statewide, and federal elections. While polling stations will run from 6 AM to 6 PM, there are still a number of Kentucky workers whose schedules may keep them from getting a chance to cast their ballots. Luckily, the Commonwealth of Kentucky has a number of laws in place providing rights and protections to workers who perform their civic duty on Election Day.

TIME OFF TO VOTE

In Kentucky, employers are required to provide employees a reasonable amount of time off work in order to vote in an election. This leave of absence must not be less than four hours, and must be scheduled between the opening and closing of the polls. An employer must also provide the same amount of leave to a person who, prior to Election Day, visits the clerk’s office to request an application for, or execute, an absentee ballot. This leave must be provided during business hours. In either scenario, employers can require employees planning to vote to apply for leave prior to Election day, and can also set the hours during which the employee can take leave.

THE PENALTY PROVISION

There is no specific requirement that an employer pay its employee for the time taken off to vote. However, the law does prohibit an employer from penalizing an employee for taking such leave. This provision is fairly vague, and the statute provides no definition of the term “penalize,” so the issue of what constitutes a penalty is not entirely settled, although t is likely safe to assume that any adverse action against an employee for taking leave to vote (firing, demoting, decreasing wages) will be covered.

However, the statute does make clear that an employee who requests leave to vote, but in turn does not cast a ballot, may be penalized or disciplined. This provision only applies if the employee was able to vote, but simply chose not to.

ELECTION OFFICERS

 An employee selected to be an election officer is entitled to a leave of absence from employment for an entire day for training and to serve as an officer during election day.  There have been a number of recent cases in which employers have attempted to force their employees for voting for a certain candidate. For instance, the CEO of Rite-Hite, a company that manufactures dock loading equipment, sent an email to all of Rite-Hite’s employees threatening “personal consequences” to those employees if a particular candidate won office. In the Commonwealth of Kentucky, that would very likely be considered illegal. In Kentucky, the following acts are prohibited:

  • attempting to coerce, influence or direct an employee’s vote for a political party, candidate, platform, principle, or issue through bribes, promises, favors, or other inducements;
  • threatening to discharge an employee if he or she votes for any candidate; and
  • circulating any statement or report that employees are expected to vote for any person, group of persons, or measure.

An employer who violates any of the above rights and privileges could be subject to civil liability. Remember these provisions on Election Day, and if you feel your employer has taken any adverse action against you for voting, or for voting for a certain candidate, you should seek counsel immediately in order to learn about your options.

$345,000 settlement for whistleblowing allegations

A former McCracken County clerk employee has settled her claims for wrongful termination, based upon allegations that she was harassed by coworkers then fired by the county clerk in 2012 after she blew the whistle on what she believed was tax fraud.  The county and its insurance provider paid her $345,000 to “avoid the risk and uncertainty of a trial,” rather than as an admission of guilt, according to the county’s attorney.  In the experience of the plaintiff’s employment attorneys at Abney & McCarty, it is unprecedented that any government entity, much less seasoned insurance adjustors, would agree to pay such an amount just to avoid risk and uncertainty at trial, but we will take their word for it.

TRUCKING LAW: CAN YOUR EMPLOYER LEGALLY MAKE YOU VIOLATE FEDERAL REGULATIONS?

Working in the trucking and shipping industry can be a rough occupation.  It often involves tight deadlines, thousands of miles of pavement, and long hours – not to mention navigating America’s roads and interstates, which claimed over 34,000 lives in 2012 alone.  As you might imagine, safety on the road is a large concern for the industry, and the public in general, prompting the Federal Government to put into place a number of regulations addressing those concerns.

 

These regulations are enforced by the Federal Motor Vehicle Carrier Safety Administration, a division of the Department of Transportation.  They cover a wide range of issues within the trucking industry, including maximum allotted driving time, licensing requirements, drug and alcohol prohibitions and procedures for testing, and a number of other topics related to safe trucking practices.  The violation of many of these regulations could result in civil penalties, such as heavy fines or loss of license.

 

Despite these regulations, and the consequences that could arise if they are violated, many commercial truck drivers experience pressure from their employers to engage in activity prohibited under the regulations.  As mentioned above, the commercial trucking industry constantly faces deadlines for shipping that are difficult to meet.  For employers, missing a deadline may mean economic losses, and so they often push their drivers to meet those deadlines by any necessary means.  This places drivers in a precarious situation:  on the one hand, if they violate the regulations to meet a deadline, their employer might be pleased, but they run the risk of fines or losing their licenses; on the other, if they adhere to the regulations, but don’t make their deadline, they may face discipline or even termination from their employers.

 

So can an employer fire a truck driver for refusing to violate federal regulations?  Well, that question has not exactly been answered conclusively.  In the context of court decisions, there’s good news and bad news.  First the bad news:  One case, coming from the Federal District Court in the Western District of Kentucky, states that yes, an employer can terminate an employee for refusing to violate driving regulations.  In that case, Jones v. Metal Management Nashville, LLC, 2009 WL 197427 (W.D.Ky 2009), the court dismissed an action claiming wrongful discharge in violation of public policy for a truck driver who was terminated for refusing to violate federal regulations.

 

In its opinion, the District Court dismissed the claim for wrongful discharge in violation of public policy outright, stating explicitly that federal regulations do not fall within the public policy exception to the at-will doctrine.  Id. at *3.  The District Court based its holding on Shrout v. The TFE Group, 161 S.W.3d 351 (Ky. App. 2005).  In Shrout, the Court of Appeals does state that federal regulations cannot be the basis for discharge in violation of public policy claim.  161 S.W.3d at 355.  The Shrout Court based its decision on two reasons:  (1) that KRS § 446.070, the statute underpinning a wrongful discharge claim, applies only to Kentucky statutes or constitutional provisions; and (2) the public policy being referenced must be defined by statute and must be “directed at providing statutory protection for the worker in his employment situation.  Id. at 355.

 

While that case may look discouraging for drivers worried about following regulations and maintaining job security, there is still the good news mentioned before.  First, this is only one opinion held by a District Court, so it holds little in the way of precedential value, meaning that Kentucky courts and higher courts don’t have to follow the legal conclusions of the opinion.  Second, the reasoning of the Western District appears to be flawed.

 

To begin with, the District Court’s reliance on the Shrout case may be flawed.  The facts in Shrout did not stem from an employee’s refusal to violate a law, but rather a right perceived by the plaintiff to offer protection to employees against deficient drug testing procedures.  However, this situation is distinguishable from a driver refusing to violate trucking regulations, where an acquiescence to the demands of the employer could result in civil penalties being assessed against him.

 

There are a number of other reasons for why the District Court’s decision in Jones is not legally sound, but those reasons are fairly complex, and aren’t really appropriate for this article of this length.  It is enough for the purposes of this entry to simply note that this one decision is not, by itself, controlling on whether an employer can fire its driver for refusing to violate driving regulations.

 

It should also be noted that drivers have some protection under federal law from this sort of retaliation.  Drivers who have been discharged for refusing to violate regulations can pursue administrative claims against their employers, as outlined in 49 USC § 31105.  Successful claims could allow a driver terminated for this reason to recover compensatory damages, including backpay with interest, and compensation for any special damages sustained as a result, including litigation costs, expert witness fees, and reasonable attorney fees.  Additionally, a successful claimant could be reinstated to his or her former position, and may be able to recover up to $250,000.00 in punitive damages.  A driver discharged under these circumstances has 180 days from the date of his or her termination to file such a claim.

 

So, while the law has not been conclusively decided about the legal rights of drivers who have been terminated for refusing to violate trucking regulations, there are still protections available for drivers who find themselves in this situation.  If you feel you have been discharged under these circumstances, you should contact an attorney to learn about the options you have available to you.

PROTECTING THOSE THAT CARE FOR US — The Kentucky Patient Safety Act’s Anti-Retaliation Provisions

When our loved ones become ill, injured, or are perhaps just in need of extended care, we turn to hospitals, clinics, nursing homes, and other healthcare facilities to provide the treatment they need. This can be a nerve-wracking experience, handing over a family member to a team of professionals that are, more often than not, strangers. It is not uncommon to worry about the safety of a family member entering into a prolonged stay at a healthcare facility. Will the doctors prescribe the appropriate medication? Will the nurses administer treatment properly? Will staff respond to the patient’s needs or requests?

Fortunately, Kentucky law provides some safeguards for ensuring that the quality of patient care remains a high priority. KRS 216B.165 is a statute found within the Kentucky Patient Safety Act. Under 216B.165(1), any employee of a healthcare facility

who knows or has reasonable cause to believe that the quality of care of a patient, patient safety, or the health care facility’s or service’s safety is in jeopardy shall make an oral or written report of the problem to the health care facility or service, and may make it to any appropriate private, public, state, or federal agency.

KRS § 216B.165(1) (2013).

This essentially means that any employee who has a reason to believe patient care has been placed at risk, not only should report the problem to his or her employer, but is mandated to do so under law. The law goes even further to allow such an employee the option to make the report to an agency tasked with regulating healthcare facility quality, such as the Office of the Inspector General, or the Cabinet of Health and Family Services.

Even though this law operates to protect patient safety, and therefore increase the public trust in healthcare facilities, employers are sometimes less than grateful towards employees that report safety concerns. A report against a facility might, rightfully, result in an investigation, citations for regulatory violations, or in some cases a lawsuit for patient neglect or abuse. In these cases, an employer might often be downright vindictive, going so far as to discipline or even terminate an employee reporting patient care issues.

Take, for example, the case of Highlands Hosp. Corp. v. Castle, 2010 WL 2787906 (Ky. App. 2010). In this case, a nurse, Ms. Castle was instructed by her supervisor to start an intravenous drip on a patient that would induce her into labor. Ms. Castle refused to do so, stating that there were not enough nurses on the floor to properly treat a patient in labor. Her supervisor became very angry, and demanded that Ms. Castle follow through with the treatment. Concerned with the supervisor’s neglectful attitude toward patient safety, Ms. Castle reported the incident to another supervisor later that evening. Shortly after her report, Ms. Castle was terminated.

These types of scenarios are not all that uncommon. Fortunately for healthcare workers like Ms. Castle, the Kentucky Patient Safety Act prohibits healthcare facilities from retaliating against employees who have followed through on their duty to report patient safety concerns. KRS 216B.165(3) states:

No health care facility or service … shall by policy, contract, procedure, or other formal or informal means subject to reprisal, or directly or indirectly use, or threaten to use, any authority or influence, in any manner whatsoever, which tends to discourage, restrain, suppress, dissuade, deter, prevent, interfere with, coerce, or discriminate against any agent or employee who in good faith reports, discloses, divulges, or otherwise brings to the attention of the health care facility or service the circumstances or facts to form the basis of a report [regarding patient care concerns].

The language in the provision, as you can see, sweeps very broadly to make sure that an employee making a report, or even participating in an investigation regarding patient safety, is not subjected to any type of retaliation against him or her from an employer for engaging in whistleblower activity. This type of protection greatly reduces the temptation of a healthcare facility to fire an employee in order to avoid the consequences of running a subpar facility.

Healthcare workers are extremely important members of Kentucky’s workforce. They provide invaluable services to those of us in need of quality medical care, and they should be protected from retaliation against their efforts to ensure that patient care is held to the highest standard. If you are a member of the healthcare community, and feel that you have been retaliated against for performing your duty to report safety concerns, you are entitled to be made whole.

Are you entitled to leave from work under the Family Medical Leave Act?


Have you recently given birth, only to return to work and find your position no longer available or that you have been demoted? Perhaps you are the caretaker of an elderly parent who is facing serious health complications. In either scenario, the Family Medical Leave Act (FMLA) protects eligible employees from being fired or losing their health benefits under various circumstances, including the birth or adoption of a child, personal medical reasons, and to care for a child, spouse, or parent with a serious health condition.

If you qualify for an FMLA-protected leave of absence, you may take up to 12 workweeks of unpaid time off within a 12-month period. Eligible employees who are the spouse, son, daughter, parent or next of kin of a covered military service-member may take up to 26 weeks of FMLA leave during a single 12-month period to care for the service-member who is undergoing medical treatment, recuperation, or therapy for a serious injury or illness incurred or aggravated in the line of duty on active duty.

After your leave ends and you return to work you are entitled to the same or equivalent position with equal pay and benefits, assuming you are able to perform the essential functions of the job. Denial of your former job or a demotion should not be tolerated.

If you feel like your rights under FMLA have been violated, you may have a claim of interference or retaliation against your employer.

What is an Interference Claim?

An interference claim arises when your employer somehow interferes with your protected leave of absence. To obtain damages, you must be an eligible employee of a qualifying employer, as defined by the statute. You must show that you were entitled to an FMLA-protected leave of absence, provided notice of your intention to take a leave of absence, and your employer denied you benefit that you were entitled to receive.

What is a Retaliation Claim? 

An employee who is retaliated against for exercising a right under FMLA must show that he or she was engaged in statutorily protected conduct and suffered an adverse employment action because of that conduct. Acts of retaliation may include your employer’s refusal to reinstate your position or a demotion of responsibilities and pay. If retaliation is found, your employer must offer a legitimate lawful reason for taking the adverse employment action against you.

If my rights under FMLA have been violated, what damages are available?

An employee may sue an employer for the amount of wages, salary, employment benefits, or other form of compensation denied or lost. Alternatively, you may recover any actual monetary loss directly attributable to your employer’s violation of FMLA, such as cost of providing care during a protected leave of absence. Equitable relief such as pay raises, reinstatement, or a promotion may also be appropriate. Other potential damages include an award of interest for the amount determined, liquidated damages, reasonable attorney fees, expert witness fees, and other court costs, to be paid by your employer.

The attorneys at Abney & McCarty frequently handle cases related to FMLA. We will aggressively advocate for your lost or denied employment benefits and seek complete compensation for your claim.

AM I ENTITLED TO SEVERANCE PAY?

In today’s employment environment, it is not uncommon for a long-time employee to be approached by his or her employer with a severance agreement, with little or no warning. Often employees are caught off guard when they’re told they are being terminated and then asked to sign severance agreement. Here are three common questions that often come up in this situation:

1. Do I have a right to severance pay if my employer fires me?

Unless you have a written contract or enforceable severance policy with your employer, in Kentucky, as an at-will employee, you are not legally entitled to severance pay. While you don’t have a right to severance pay, you do have a right to receive your final paycheck. Your employer cannot condition receipt of your final paycheck on a requirement that you sign a severance agreement.

However, if you feel you have been targeted for termination based upon your gender, religion, race/national origin, age, or disability, because you complained about discrimination, or in retaliation for making a complaint against your employer, you could be the victim of a wrongful termination.

2. Do I have to sign a release before I can receive any severance pay?

While most employers will ask, or more likely require, that you sign a release before you receive any severance payments, there is no legal requirement that you sign a release. Many employers use severance payments as a way to control and limit their future liability when terminating an employee. The only way an employer can limit its liability for wrongful termination or discrimination is to obtain a release of your legal claims.

Be aware that if you do sign a release in order to get your severance pay, you are most likely giving up your right to pursue any legal action against your employer. This includes the right to bring a suit against your employer for wrongful termination.

3. My employer told me I have to sign the severance agreement immediately.

In some cases, employees who are subject to a lay-off or a reduction-force are protected by the Older Workers Benefit Protection Act. The OWBPA requires that some employees be given a certain amount of time to review a severance agreement and, in some situations, you may even have seven days in which to revoke a severance agreement that you have already signed.