Business Workshop: Righting wrongful discharge
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In a decision that potentially expands the scope of wrongful discharge claims in Pennsylvania to encompass claims for failure to hire, a military reservist who says he was denied the right to reclaim his civilian job upon returning from a deployment in Pakistan has won the right to pursue punitive damages in a claim under Pennsylvania common law for wrongful discharge in violation of public policy.
He can also concurrently pursue claims under the federal Uniformed Services Employment and Reemployment Rights Act and the Pennsylvania Military Affairs Act.
USERRA applies to all employers in the United States, regardless of size, with certain discrete exceptions. It guarantees reinstatement to employees who have properly advised their employer that they would be taking leave for the purpose of military service, have served under honorable conditions, and have timely returned to work and requested reemployment.
Pennsylvania employers must also comply with the requirements of PMAA, which is generally more favorable to employees than is USERRA and does not require an employee to provide notice before taking leave. If the requisite conditions have been satisfied by the employee, an employer is required to reemploy the individual upon his or her return, unless the employer can show that changed circumstances have made it impossible or unreasonable to do so.
USERRA entitles successful plaintiffs to reinstatement and lost pay and benefits, while PMAA does not provide for any economic recovery. While PMAA does not articulate any specific remedy, it favors the preservation of jobs for military reservists and condemns discrimination on the basis of military service.
Pennsylvania employers should be aware of this recent decision because it has the potential to significantly increase the damages that are available to an employee who claims that his or her rights under USERRA and/or PMAA have been violated. In addition, the decision potentially expands the scope of the wrongful discharge tort by giving rise to claims for failure to hire as well as wrongful discharge.
-- Elizabeth Stroyd Windsor is with Morgan, Lewis & Bockius LLP, ewindsor@morganlewis.com
First Published February 14, 2011 12:00 am
