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Job Protection For Returning Soldiers

On Behalf of | Feb 4, 2010 | Employment Law

American soldiers who temporarily leave their current employment to serve our country in Iraq, Afghanistan, or otherwise are afforded protections under the employment laws upon their return. A recent Massachusetts jury verdict and thereafter decision by the trial judge upholding the verdict provides a clear message that both judges and juries will enforce these laws.

On January 25, 2010, a Magistrate Judge for the United States District Court of Massachusetts refused to set aside a $505,748.00 verdict in favor of Stephen F. Fryer against his former employer, A.S.A.P. Fire and Safety Corporation, Inc. (hereinafter “ASAP”). Fryer began work with ASAP in January 2006 servicing and installing sprinkler systems. In 2007, his hourly rate increased, he received sales commissions, a company gas card, and company vehicle. He loved his job and proved very successful in the sales aspects of the job.

In January 2007, Fryer accepted an offer to re-enlist in the Massachusetts National Guard. While he did not expect to be deployed to Iraq shortly after re-enlisting, he was, in fact, deployed. His immediate boss at ASAP and the owners were not happy that he was leaving. Fryer returned home from Iraq in May 2008 and he was very positive, upbeat, and excited to be back. Thereafter ASAP informed him that there were no positions available for him. During Fryer’s deployment ASAP had hired another individual to work in Fryer’s stead. Fryer was eventually given the job of sprinkler helper a position that involved helping another sprinkler fitter. It was not a comparative job to his previous job nor was it the type of job he would have escalated to had he not been deployed. In October 2008, ASAP fired Fryer. The result was that Fryer lost wages and became depressed. His relationship with his wife and children deteriorated.

Fryer proceeded to trial with claims that ASAP and its owner violated the Uniform Services Employment and Re-employment Rights Act when they failed to re-employ him in his pre-service position and discriminated and retaliated against him because of his military service. The jury found in favor of Fryer and awarded him $505,748 in damages.

The Judge noted that under federal law ASAP did not have a defense to putting Fryer back in his previous position because they had already hired a permanent replacement. ASAP could not refuse to re-employ Fryer on the basis that another employee was hired to fill the position, even if the employment of Fryer required the firing of his replacement. Furthermore, the Judge found that a sprinkler helper position neither put Fryer in his previous position or in a position that he would have escalated to had it not been for his deployment; again in violation of federal law. The Judge found that the jury’s award, while generous, withstood scrutiny.

Employers should take this as a clear message that if one of these cases goes to a jury, the risk for the employer can be great. A soldier returning home after providing military service to our country creates a very sympathetic plaintiff to which most jurors will want to protect. Employers should seek legal counsel as to deployed employees to comply with the law upon their return.

J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].