LAW REVIEW 1111
DOJ Settles USERRA Suit Against Titan
By Captain Samuel F. Wright, JAGC, USN
On January 18, 2011, the
Department of Justice (DOJ) announced that it had settled the USERRA lawsuit
that it had filed in the United States District Court for the Northern District
of California against Titan Laboratories, Inc. and its owner on behalf of Army
Reservist Miguel Orozco Orduno (Orozco).
Under the settlement agreement, Orozco will receive $21,000 in back pay.
Orozco left his Titan
Laboratories job when he was called to active duty. While he was away, Titan hired a “permanent
replacement.” Orozco returned from
active duty and met the eligibility criteria for reemployment under the
Uniformed Services Employment and Reemployment Rights Act (USERRA), but Titan
denied him reemployment.
Orozco complained to the
Veterans’ Employment and Training Service of the United States Department of
Labor (DOL-VETS), which conducted an investigation and found Orozco’s complaint
to be meritorious. After trying
unsuccessfully to persuade Titan to comply with USERRA, DOL-VETS referred the
case to DOJ and recommended that DOJ file suit on behalf of Orozco, which DOJ
did. The case has now been resolved.
Because Orozco met the USERRA
criteria regarding prior notice, the five-year limit, release under honorable
conditions, and timely application for reemployment, he was entitled to prompt
reinstatement, even if that means displacing the replacement. Please see Law Review 0829, available at www.roa.org/law_review. You will find
more than 800 articles there, along with a detailed Subject Index and a search
function, to facilitate finding articles about very specific topics. Because Titan violated Orozco’s USERRA
rights, the company was required to compensate him for the pay he lost because
of the violation.
The Honorable Thomas E. Perez
(the Assistant Attorney General for DOJ’s Civil Rights Division) said: “The men and women who serve in the military
must be able to do so without fear that they will lose their civilian jobs as a
result of their service. This case demonstrates
the Justice Department’s commitment to vigorously enforcing federal laws that
protect the employment rights of our service members.”
The Honorable Ray Jefferson
(Assistant Secretary of Labor for Veterans’ Employment and Training) said: “We applaud the Justice Department not only
for helping Mr. Orozco bring his case to a successful conclusion, but also for
its outstanding efforts on behalf of our country’s service members.”
If you believe that your
USERRA rights have been violated, you can make a formal complaint to DOL-VETS,
through the agency’s website, www.dol.gov/vets. DOL-VETS will investigate your
case and, upon your request, refer the case to DOJ, if DOL-VETS does not
resolve the case. If DOJ is satisfied
that you are entitled to the USERRA benefits that you seek, it may file suit on
your behalf and represent you in suing the employer, at no cost to you. DOL-VETS refers the case to DOJ if the
employer is a state or local government or private employer. If the employer is a federal agency, DOL-VETS
refers the case to the Office of Special Counsel (OSC).
If DOJ turns you down, or if
you do not request referral to DOJ, you can file suit through private counsel,
and if you prevail the court can award you attorney fees, in addition to back
pay and other relief. You do not need to
go through DOL-VETS before filing suit in federal court, but if you want free
legal help from DOJ or OSC you must go through DOL-VETS.
Cases against state and local
governments and private employers are filed in Federal District Court, either
by DOJ or by private counsel. Cases
against federal agencies are filed in the Merit Systems Protection Board
(MSPB), either by OSC or by private counsel.
The MSPB can also award attorney fees to a prevailing USERRA claimant
who was represented by private counsel.
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