With the United States being involved in several conflicts overseas, it is possible that you and your company have had or will have an employee returning from active military service who wants to reclaim his or her previous position.  The failure to comply with the law just became more expensive.  U.S. District Judge Terrence F. McVerry of the Western District of Pennsylvania recently ruled that a military reservist returning from active duty can pursue a state tort law claim for punitive damages where his former employer failed to rehire him.

The duties that an employer owes to an employee that goes into active military service are set forth in the federal Uniform Services Employment and Reemployment Rights Act (“USERRA”) and the Pennsylvania Military Affairs Act (“PMAA”).  The court found that the USERRA allowed a plaintiff to collect liquidated damages, but was silent as to whether punitive damages were recoverable.  However, the court found that the express language of the USERRA states that it does not supersede any federal, state, or local law “that establishes a right or benefit that is more beneficial to, or is in addition to, a right or benefit provided for such person in USERRA.”  In other words, a plaintiff was permitted to pursue remedies in addition to those provided for in the USERRA.

Based upon the PMAA, the court found that there is an established public policy in Pennsylvania against discriminating against employees or former employees because of military obligations.  Therefore, the court found that the plaintiff was entitled to pursue a common law wrongful discharge claim, and the additional tort damages, including damages for emotional distress, embarrassment, and humiliation.  The plaintiff was also entitled to seek punitive damages.

Thus, it is important that your company know its obligations to current or prospective employees engaged in military service.  If you have any questions or concerns regarding military employees, please contact Faclo Muscante at fam@mbm-law.net or 412.242.4400.

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Alfred Maiello

Alfred C. Maiello is the founding member of MBM and has represented area school districts as solicitor for 50 years. He counsels school districts and educational institutions on leading developments in school law and guiding them through their day-to-day and long-term challenges.