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A federal law that protects workers who serve in the armed forces from discrimination does not guarantee that a worker is entitled to eight hours of rest upon return from duty, the 3rd U.S. Circuit Court of Appeals has ruled in a case of first impression. In Gordon v. Wawa Inc., a unanimous three-judge panel refused to revive a suit brought by the estate of an Army reservist who was allegedly ordered to work a night shift immediately upon his return from a weekend of reserve duties and died in a car accident when he lost consciousness while driving home. In the suit, plaintiff’s attorney Philip L. Faccenda of Medford, N.J., argued that Wawa violated provisions of the Uniformed Services Employment and Reemployment Rights Act of 1994 when it ordered Willie James Gordon Jr. to return to work immediately upon return from his reserve duties and allegedly threatened to fire him if he refused. Faccenda argued that USERRA guarantees members of the armed services the right to an eight-hour rest period between returning home from military exercises and returning to work. But U.S. District Judge Robert B. Kugler dismissed the suit, finding that the language of USERRA includes no such promise of an eight-hour rest period. Now the 3rd Circuit has upheld Kugler’s decision, finding that the statute’s reference to an eight-hour period describes the time in which a worker must report back to work, and not a guaranteed rest period. “There is no way to construe this statutory language as conferring a substantive right to eight hours of rest for the returning employee,” Senior U.S. Circuit Judge Max Rosenn wrote in an opinion joined by Circuit Judges Theodore A. McKee and Joseph F. Weis Jr. Rosenn found that Kugler correctly concluded that §4312(e) of USERRA “is written entirely in terms of an employee’s duties, as opposed to an employer’s obligations.” According to the suit, Gordon was an active member of the U.S. Army Reserve and also worked for Wawa in Vineland, N.J. On Sept. 17, 2000, Gordon was on his way home from weekend reserve duties in Virginia when he stopped by the Vineland store to pick up his paycheck and get his work schedule for the upcoming week. The suit alleged that Gordon’s shift manager ordered him to work that night’s late shift, and threatened to fire him if he refused. Gordon complied with the order, and on his drive home from work, lost consciousness at the wheel of his car. His car crashed, and he died as a result of his injuries, according to the suit. Gordon’s mother, Wanda Gordon, filed suit as administratrix of his estate, alleging that Wawa had violated USERRA by ordering her son back to work before he had a chance to rest and by threatening to fire him if he refused. Kugler granted Wawa’s motion to dismiss, finding that §4312(e) “merely requires an employee returning from uniformed duty to notify his or her employer of an intent to return to work within a specified time period,” and “imposes no affirmative duty on an employer to prevent an employee from reporting to work prior to the expiration of an eight-hour period following the employee’s return from uniformed services.” The 3rd Circuit agreed, noting that the handful of cases applying USERRA supported Kugler’s view. Rosenn found that “some aspects” of the legislative history of USERRA supported the plaintiff’s position that §4312(e) provides a right to rest. But Rosenn found that the remarks of a few members of Congress were not enough to trump a plain reading of the statute’s terms. “That Congress took into account a service member’s need for rest in shaping the reporting requirements does not mean that Congress intended to create an independent right to rest,” Rosenn wrote. Instead, Rosenn found, the language of §4312(e) “sets forth a returning employee’s requirement for providing notice of intent to return to work in order to reclaim his or her former job, and contains no rights-creating language. Nothing in the legislative materials clearly evinces Congress’ intent that §4312(e) confer a right to rest.” Attorneys Edward T. Ellis and Janice G. Dubler of the Cherry Hill, N.J., office of Montgomery McCracken Walker & Rhoads represented Wawa in the appeal.

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