State and Federal laws with respect to damages

It is my belief that I was terminated seven months ago due to my reserve military obligation. I feel there is a clear-cut USERRA discrimination case. I have pursued the matter via the Department of Labor with little avail. I am contemplating on seeking private representation. My question is rather simple. Under the federal USERRA laws (Chapter 43, Part III, Title 38) I can only be awarded liquidation damages if proven. However under Ohio law is there the possibility of this type discrimination can be up held as protective conduct in which case I can purse punitive damages against my former employer.

1 answer  |  asked Mar 23, 2004 7:08 PM [EST]  |  applies to Ohio

Answers (1)

Neil Klingshirn
Good USERRA question

USERRA provides a right against discrimination, as well as a remedy if an employer violates the right. The remedy is found in 38 4323(d). I am printing that section at the end of this message.

Your question is whether you can also recover punitive damages under Ohio law. It is possible that you can, but a recent Ohio Supreme Court case clouds the issue. The issue is whether the public policy expressed by USERRA is jeopardized because the remedies available under the USERRA would deter you from pursuing your rights under it. Sinced USERRA allows you to recover lost wages, plus an equal amount as liquidated damages if the employer's action was "willful," plus reinstatement and attorneys' fees, you have to find out if that is sufficient to support an effort to pursue your rights. This in turn will depend on the strength of your case and the extent of any lost wages. If you you can show that it is not economically logical to pursue these claims based on those limited recoveries, but that it would be worth it if punitive damages were recoverable, then you may have the basis for bringing a public policy claim.

Best regards,

Neil Klingshirn

Here is the text of 4323(d):

(d) Remedies.
(1) In any action under this section, the court may award relief as follows:
(A) The court may require the employer to comply with the provisions of this chapter [38 USCS 4301 et seq.].
(B) The court may require the employer to compensate the person for any loss of wages or benefits suffered by reason of such employer's failure to comply with the provisions of this chapter [38 USCS 4301 et seq.].
(C) The court may require the employer to pay the person an amount equal to the amount referred to in subparagraph (B) as liquidated damages, if the court determines that the employer's failure to comply with the provisions of this chapter [38 USCS 4301 et seq.] was willful.
(2) (A) Any compensation awarded under subparagraph (B) or (C) of paragraph (1) shall be in addition to, and shall not diminish, any of the other rights and benefits provided for under this chapter [38 USCS 4301 et seq.].
(B) In the case of an action commenced in the name of the United States for which the relief includes compensation awarded under subparagraph (B) or (C) of paragraph (1), such compensation shall be held in a special deposit account and shall be paid, on order of the Attorney General, directly to the person. If the compensation is not paid to the person because of inability to do so within a period of 3 years, the compensation shall be covered into the Treasury of the United States as miscellaneous receipts.
(3) A State shall be subject to the same remedies, including prejudgment interest, as may be imposed upon any private employer under this section.

(e) Equity powers. The court may use its full equity powers, including temporary or permanent injunctions, temporary restraining orders, and contempt orders, to vindicate fully the rights or benefits of persons under this chapter [38 USCS 4301 et seq.].

(f) Standing. An action under this chapter [38 USCS 4301 et seq.] may be initiated only by a person claiming rights or benefits under this chapter [38 USCS 4301 et seq.] under subsection (a) or by the United States under subsection (a)(1).

(g) Respondent. In any action under this chapter [38 USCS 4301 et seq.], only an employer or a potential employer, as the case may be, shall be a necessary party respondent.

(h) Fees, court costs.
(1) No fees or court costs may be charged or taxed against any person claiming rights under this chapter [38 USCS 4301 et seq.].
(2) In any action or proceeding to enforce a provision of this chapter [38 USCS 4301 et seq.] by a person under subsection (a)(2) who obtained private counsel for such action or proceeding, the court may award any such person who prevails in such action or proceeding reasonable attorney fees, expert witness fees, and other litigation expenses.

(i) Inapplicability of State statute of limitations. No State statute of limitations shall apply to any proceeding under this chapter [38 USCS 4301 et seq.].

(j) Definition. In this section, the term "private employer" includes a political subdivision of a State.

38 USCS 4323

posted by Neil Klingshirn  |  Mar 24, 2004 12:40 PM [EST]

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