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Reservist wins back pay in USERRA case

Jan. 3, 2013 - 04:56PM   |   Last Updated: Jan. 3, 2013 - 04:56PM  |  
Sgt. Maj. Richard Erickson
Sgt. Maj. Richard Erickson (Army)
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An Army Reserve Special Forces sergeant major has won another round in his court battle to get back his job with the U.S. Postal Service, which could end up having to pay him more than $2 million in back pay, benefits and attorneys' fees.

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An Army Reserve Special Forces sergeant major has won another round in his court battle to get back his job with the U.S. Postal Service, which could end up having to pay him more than $2 million in back pay, benefits and attorneys' fees.

Sgt. Maj. Richard Erickson was fired from his job as a clerk in registered mail and distribution in Fort Myers, Fla., nearly 13 years ago, because of excessive use of military leave. Because of his military service, Erickson worked for the Postal Service for only about four days between 1996 and early 2000, when he was fired.

"Under [the Uniformed Services Employment and Reemployment Rights Act] the government is supposed to be a model employer. In this case, they were anything but the model employer," said Greg Rinckey, an attorney representing Erickson.

The Atlanta regional office of the Merit Systems Protection Board issued a ruling Dec. 14 ordering the USPS to reinstate Erickson retroactive to the date he was fired in 2000, and pay him lost wages and benefits, within 60 days. The decision becomes final Jan. 18 unless an appeal is filed.

USPS officials disagree agree with the decision, said spokesman Mark Saunders, "and we are considering our options for further review."

Even if they file an appeal, the Postal Service must reinstate Erickson and pay him his salary plus back pay until the appeal is decided, according to the ruling.

Erickson has won two decisions before the U.S. Court of Appeals for the Federal Circuit, but the Postal Service has continued to fight his reinstatement.

"It's ridiculous this case has dragged on this long," said Sam Wright, director of the Service Members Law Center of the Reserve Officers Association. In the meantime, Wright said, since the record shows Erickson was fired, he was unable to get another federal job.

"I didn't realize how damaged I was, being fired from the post office," Erickson said. "I was red-flagged. Until my name is cleared, no one is going to hire me. I was raising three daughters by myself."

At the time he was fired in April 2000, he was a National Guard soldier. He left active duty with the Guard in December 2005 and was on unemployment for six months. He then went into the Army Reserve.

"I'd like my job back, but it's not just about me. It's for other service members who have lost their jobs because of serving their country," said Erickson, now stationed at Fort Bragg, N.C. as a Reserve member on active-duty orders.

In an earlier decision, the U.S. Court of Appeals for the Federal Circuit ruled that Erickson is not entitled to reemployment rights under USERRA because he had not made a timely application for reemployment with the Postal Service. Those who have been called up for 181 days or more must notify their employer no later than 90 days after the end of their military service that they wish to return to work.

But the court ruled that even though Erickson didn't have reemployment rights, he is still entitled "not to be discriminated against" under another section of USERRA, and is thus entitled to the relief the back pay and other benefits, as well as attorneys' fees.

"This is a good illustration of why you need to dot the i's and cross the t's. You need to keep in mind the five conditions to meet for reemployment" under USERRA, Wright said.

Under those conditions, an employee must:

Have left the position for purpose of military service.

Have given prior oral or written notice to the employer.

Not have exceeded the cumulative five-year limit of military service while working for that employer (nine exceptions apply; generally there will be a statement with the military orders about whether a specific period of active-duty time will count as an exception).

Be released from active duty without a disqualifying adverse discharge.

Apply for reemployment in a timely manner after release from military service. The deadlines depend on the length of time deployed. Wright notes that you don't have to visit your employer in person; you can send a letter by certified mail.

The case also sends a message to other service members about their reemployment rights, Rinckey said. "If you're being discriminated against, you need to enforce your rights," he said.

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