Life during (and after) Wartime: Enforceability of Waivers under USERRA
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) guarantees returning members of the military reinstatement to the same jobs they enjoyed before service interrupted their private lives. This includes the benefits, pay, and seniority they would be entitled to if the interruption had not occurred.
When George Wysocki returned to the United States in 2008 after serving a tour of duty in Afghanistan, he understandably expected to regain his position at the computing firm IBM. The company, however, was displeased with what it considered a deterioration in Wysocki’s skills and decided to terminate him after only a few months. IBM offered Wysocki a severance package worth a shade over $6,000 on the condition that he release his USERRA discrimination claims against the company. He signed the agreement but sued IBM anyway, alleging that his USERRA rights had been violated. Wysocki’s suit relied on a provision in USERRA that renders private agreements reducing reemployment rights unenforceable unless the provisions of the private agreement are “more beneficial” for the veteran than those provided by the Act.
The Sixth Circuit found that the severance agreement was “more beneficial” under the meaning of this provision, 38 USC § 4302, than Wysocki’s USERRA rights. It was sufficient, the court held, that the agreement was supported by consideration and accordingly that Wysocki believed at the time that the rights in the agreement were “more beneficial.” The court then enforced the release because Wysocki could provide no evidence of duress, mistake, or other unfair dealing. Wysocki was entitled to his $6,000 but not his job at IBM.
Wysocki’s story is similar to that of many veterans returning from Afghanistan and Iraq. Though Congress enacted USERRA to secure civilian work for returning veterans, it did not anticipate that the number of activated military reservists would swell to 793,447 soldiers over the span of a decade. The strain on private employers in the economic downturn has encouraged some to resort to tactics similar to IBM’s; the Pentagon has reported that over 10 percent of returning servicemembers face difficulties returning to work and asserting their rights under USERRA.