Wachovia Securities to Pay $1M to Former Adviser in
USERRA Case
March 23, 2009 (PLANSPONSOR.com) - The U.S. District
Court for the District of Connecticut has ordered Wachovia
Securities to reinstate a former adviser and pay him back pay
and damages for violating the Uniform Services Employment and
Reemployment Rights Act (USERRA).
The court ruled that Wachovia Securities
constructively discharged reservist Michael Serricchio
when it offered him a much less compensated position upon
his return from active duty. The court rejected
Wachovia's argument that Serricchio failed to fulfill
his obligation to minimize his wage loss by not accepting
the inferior offer or by not seeking other employment as
a financial adviser.
Serricchio and his wife started a tanning salon
after he rejected Wachovia's offer, and the court
cited other cases in which it was found that
self-employment was an appropriate way to mitigate the
loss of wages.
Under USERRA, a person returning to employment from
military service "is entitled to the seniority and
other rights and benefits determined by seniority that
the person had on the date of the commencement of service
in the uniformed services plus the additional security
and rights and benefits that such person would have
attained if the person had remained continuously
employed."
After reviewing several expert calculations of what
Serricchio's wages would have been had he remained in
continuous employment, the court decided he was due
$680,312, less his estimated mitigating earnings of
$290,859, for a total back-pay award of $389,453. The
court also awarded liquidated damages in the amount of
$389,453, for a total of $778,906, plus prejudgment
interest, fees, and costs.
In addition, Wachovia was ordered to reinstate
Serricchio, effective April 1, 2009, to a financial
adviser position with the full package of normal
employment benefits in Springfield, Massachusetts, or in
another geographically reasonable location. For three
months, Wachovia is to pay Serricchio $12,300 per month
for a year, after which Serricchio will be responsible
for generating his own income through his client
accounts.
The court opinion is
here
.
Rebecca Moore
editors@plansponsor.com