"USERRA is a federal statute designed to protect military personnel from discrimination and to guarantee reinstatement to civilian jobs upon completion of service."
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USERRA UPDATE
California Employee Severance Agreements Cannot Release USERRA Claims
By Christopher W. Olmsted, Esq.
Sometimes peace cannot be bought at any price. In the employment law realm, employers sometimes elect to offer severance agreements to departing employees with the goal, in part, of releasing all claims and thus avoiding litigation. In California this is now impossible with respect to USERRA claims.
USERRA is a federal statute designed to protect military personnel from discrimination and to guarantee reinstatement to civilian jobs upon completion of service.
In Perez v. Uline, Inc., the company employed Mr. Perez, a captain in the United States Marine Corps Reserves. In March 2003, on the day he returned to work after duty with the Reserves, the company told Mr. Perez that it no longer needed his services. Uline presented him with a "Severance Agreement and Release." It provided that Uline would pay Perez six weeks' salary in exchange for Perez releasing Uline from all claims.
Perez signed the agreement, took the money, and then sued Uline. He alleged, in part, a claim for wrongful termination in violation of USERRA. Perez argued that the severance agreement was of no effect because USERRA prohibits such a waiver.
USERRA does contain general language limiting the power to waive rights: 38 U.S.C. section 4302(b) states: "This chapter supersedes any State law ... contract, agreement, ... or other matter that reduces, limits, or eliminates in any manner any right or benefit provided by this chapter...."
The California Court of Appeal, Fourth District, agreed with Mr. Perez. "The statute plainly states that a contract may not limit the protections of USERRA . . . Thus, [the company's] assertion that the agreement waived the protections of USERRA cannot be sustained." This appears to be the first published case in California or the Ninth Circuit applying the statutory language to a severance agreement.
In short, California employees cannot release USERRA rights in a severance agreement. In any circumstances where a terminated employee has served in the military during the course of employment, employers ought to carefully evaluate the likelihood of a USERRA-related claim before agreeing to pay severance. If such a claim is possible, employers ought to seek assistance of counsel, as there may be alternative means to address the potential liability.
More Legal Update articles.
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This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2008 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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