On Monday, the Department of Justice filed a lawsuit against Con-way Freight Inc, alleging the carrier violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) when the company failed to “promptly reassign Naval Reservist Dale Brown to his former position as a driver with appropriate seniority once he notified the company that he had fully recovered from a temporary service-related medical disability,” a DOJ press release states.
According to the DOJ press release, Brown began working for Con-way on November 9, 1987, as a driver sales representative (DSR). In 2006, he was working at the Con-way terminal in Rock Island, Illinois when he was called deployed for active duty in Iraq.
While serving our country, Brown was injured in a truck accident and suffered a serious shoulder injury. Brown was honorably discharged and he returned to Con-way in 2009. Con-way placed Brown in a lower-paying position due to medical restrictions caused by the shoulder injury. By 2012, Brown had fully recovered and notified the company that he was able to resume his position as a DSR, however Con-way refused to allow Brown to return to his position, telling him he had to apply for open positions as they came available.
Months later, Brown was awarded a DSR position, however Con-way treated Brown as a new employee, with no seniority, and he had to bid on assignments. Brown received a 40% reduction in pay compared to his prior earnings as a DSR, and he was not given a regular work scheduled. Instead, Brown was forced to call in each day to see if and/or for how long he would be working on a given day.
“USERRA obligates employers to promptly reemploy returning servicemembers and place them as near as possible in the position that they would have been in absent military service, or a position of similar seniority, status and pay. For servicemembers like Brown who return with a service-connected disability, the reemployment obligation extends to providing accommodations to the servicemember, which can include a temporary position until the servicemember has recovered and is able to return to his or her proper reemployment position. Contrary to these requirements, Con-Way violated USERRA by treating Brown as a newly hired DSR, with no accrued seniority, rather than placing him in the position that he would have held had he not served his country and suffered a serious and debilitating injury that required temporary accommodation,” DOJ states.
The DOJ is seeking an adjustment to Brown’s seniority as a DSR to his pre-deployment date with back washes for Con-way’s 6-month delay in reemploying Brown following his medical clearance.
“Employers have a legal obligation under USERRA to accommodate servicemembers who suffer a disability while serving their country,” said Acting Assistant Attorney General Jocelyn Samuels for the Civil Rights Division. “The Civil Rights Division is committed to protecting the rights of those who have served their country through military service.”
This case stems from a referral by the U.S. Department of Labor (DOL) following an investigation by the DOL’s Veterans’ Employment and Training Service. The case is being handled by the Employment Litigation Section of the Civil Rights Division.
Additional information about USERRA can be found on the Justice Department website’s Servicemember page and Employment Litigation Section page, as well as on the DOL website.