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The re-employment of soldiers returning from the Iraq War is stirring litigation and confusion in the workplace, with veterans fighting to get their jobs back and employers scrambling to find out what their obligations are to those returning. Labor and employment attorneys say that with more than 500,000 troops starting to come home, the issue of getting them back to work has become a growing concern. Of particular concern is the 1994 Uniformed Services Employment and Reemployment Rights Act, which guarantees that military personnel get their jobs back when their duty is over. 16, 000 AND COUNTING USERRA complaints have been piling up in the U.S. Department of Labor — more than 16,000 in the last three years alone. At the same time, USERRA lawsuits are starting to pop up in various courts. “Courts are seeing more and more USERRA claims, and this trend will likely continue as troops continue to be deployed and return home,” said William Perkins, a labor and employment partner in the New York office of Chicago’s Seyfarth Shaw. Management-side attorneys said the confusion among employers over the USERRA is centering on how to pay, and where to place, returning veterans, particularly if their jobs have been filled, vacated because of layoffs or transferred to another company. “During the last six months, we’ve seen an increase in the number of questions we’ve fielded in connection with an employer’s rights and obligations under USERRA. Employers appear to be in a position of wanting to do what they are obligated to do under the law,” said Dean Silverberg, an attorney in the New York office of Epstein Becker & Green who advises employers on military compliance matters. Under USERRA, returning veterans are guaranteed re-employment provided that they gave notice before being deployed, served less than five years of duty, reported to work in a timely manner after service was complete and did not receive a dishonorable discharge. The statute prohibits employers from denying a veteran work on grounds that his or her position is no longer available, a hiring freeze is in effect or another person was hired to fill the slot. Returning veterans are also entitled to promotions and benefits that they would have received had they never left for duty. Lawyers believe USERRA is carrying employers into uncharted territory because it has rarely been used and is only now being put to the test in the courts. Recent court decisions involving USERRA include a 2006 ruling by the Ninth Circuit U.S. Court of Appeals — Wallace v. City of San Diego, 03-56552 — which upheld a jury verdict favoring a police officer who claimed that his employer retaliated against him and pressured him into quitting his job for taking military leave. Also last year, a confidential settlement was reached in Warren v. IBM, 03cv3340 (S.D.N.Y.), the case of an army reservist who sued International Business Machines Corp. for allegedly firing him because he had been called for duty too often. The lawsuit claimed that IBM kept the employee — an Internet security expert — on long enough to complete a $5 billion deal that was in the works, then fired him over his continued military absences. “Those are not the kinds of claims that we would want to take to a jury,” said Michael Thompson, a lawyer at Lehr Middlebrooks & Vreeland in Birmingham, Ala., who has resolved about a half-dozen USERRA complaints on behalf of employers in recent years. “The soldier is always going to be popular, and if you look at the way USERRA is structured, it’s an entitlement statute, and you’re going to have trouble convincing a jury to find against a soldier.” While most employers thus far have been spared USERRA lawsuits — many of them resolving disputes early on — Thompson foresees more litigation on the horizon as more veterans come back. “The next two years are really going to be huge,” he said. Management-side attorney Julia Judish of the Washington office of Pillsbury Winthrop Shaw Pittman, said assimilating veterans back into the work force has some glitches. For example, there are instances when an employer has eliminated an entire division, including the soldier’s position, because of financial hardships. There are also cases of a division being sold to another company, making it that company’s responsibility to hire the returning soldier. “That’s news to a lot of people,” said Judish, who called USERRA “an extremely complicated statute.” Tresa Baldas is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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