Courts Focus on Veterans’ Reinstatement Rights

Posted 11-09-2011

Michael Serricchio, a member of the U.S. Air Force Reserve, was a financial advisor for Prudential Securities in Connecticut, managing a multi-million dollar portfolio of client accounts, and earning more than $75,000 a year in commissions. In the wake of September 11, 2001, Mr. Serricchio was called to active duty, and he began what turned out to be a two-year deployment overseas.

While he was away, his company was sold to Wachovia Securities, the office was moved ½ hour away, his partner was fired and took a number of their clients with him, and his remaining clients were parceled out to other brokers. After Mr. Serricchio was released from active duty in 2003 and applied for reinstatement, it took Wachovia four months to offer him another job as a broker, making cold calls for a $2,000 a month draw against commission.

Mr. Serricchio sued in 2004, claiming that Wachovia had violated the law by failing to reinstate him promptly in a position of equivalent “seniority, status, and pay”, which meant a job with the book of business he would have had when he returned from active duty. While his suit was pending, Mr, Serricchio testified before Congress about the difficulties he was having. In September, 2011, ten years after Mr. Serricchio answered his country’s call to duty, a federal appeals court affirmed the trial court judgment of nearly $1.65 million dollars, as well as its order that Wachovia rehire Mr. Serricchio as a financial advisor, pay him a salary of $12,500 per month for three months while he regained his broker’s licenses, and then pay him a monthly draw of $12,500 a month for the next nine months, to be offset by any commissions he earned. (Serricchio v. Wachovia Securities, 2011 US App LEXIS 18868 (2d Cir. 2011))

Just a few weeks before the Serriccchio case came out, another federal appeals court affirmed a substantial jury verdict for a Marine veteran who was not reinstated as a service/sales representative after he returned from a year in Iraq, instead being placed in a helper’s job where he would not have a company van, cell phone, or a chance to earn commissions. (Fryer v. A.S.A.P. Fire & Safety Corp.,2011 U.S. App LEXIS 18686 (1st Cir. 2011)) After a jury trial, Mr. Fryer was awarded back pay, front pay, and emotional distress damages of nearly $550,000, plus another $200,000 in attorney’s fees. In addition, both Mr. Fryer and Mr. Serricchio are entitled to an award of attorney’s fees for their successful appeals.

What this means to you:

Since the 1940’s, federal law has provided that, with very few exceptions, all employees taking a military leave are entitled to be reinstated, either to their old jobs or to equivalent positions. Using a concept known as the “escalator” principle, federal regulations and court decisions require that the returning veteran be put in the job the veteran would have if he or she had remained employed instead of going on active duty.

Our veterans deserve our thanks and prompt reinstatement into civilian life, not only at Veterans Day, but all year round.

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2016-11-18T16:00:36+00:00

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.