Court: USERRA Doesn't Provide 'Right to Rest'

November 19, 2004 ( - The Uniformed Services Employment and Reemployment Rights Act (USERRA) does not constitute a 'right to rest' for service personnel returning to work, an appeals court has ruled.

>The US 3rd Circuit Court of Appeals upheld the ruling of a lower court by asserting that Willie Gordon did not have an implicit right to rest for eight hours between returning from military reserve duty and starting work at a Wawa Food Market. Gordon’s mother had sued that company after her son was killed in a car accident following a late-night shift at Wawa.

>Writing for the court, Circuit Judge Max Rosenn stated that Wawa did not violate USERRA by depriving Gordon of a rest period. Although USERRA protects a service member’s right to employment, “there is no way to construe this statutory language as conferring a substantive right to eight hours of rest for the returning employee,” Rosenn wrote in his opinion. He affirmed a lower court ruling which stated that the act requires a returning reservist to notify his employer if there is intent to return to work within a certain amount of time. The act does not, however, impose a duty on an employer to prevent an employee from returning to work before the eight-hour time period has elapsed.

>Gordon’s mother, who is the administrator of his estate, alleged that an implied threat to fire Gordon if he did not return within the eight-hour timeframe was a violation of USERRA. A lower court dismissed the suit, which was then brought before the 3rd Circuit. She cited Section 4312(e) – the part that provides that a person on military absence shall notify their employer of intent to return – as reason for Wawa to be held accountable. Although the section does make note that the person should report “following the completion of the period of service and the expiration of eight hours after a period of allowing for safe transportation,” Rosenn stated that the language is written regarding an employee’s duties, and does contain employer obligations.

>Rosenn notes that although both the US House of Representatives and the Senate – when passing the law a decade ago – contemplated that the eight-hour period would prevent such a scenario from occurring, this does not necessitate a ‘right to rest’. The act was meant to preserve employement, Rosenn ruled, and not to create such a right.

>Rosenn also rejected Gordon’s mother’s claims that an alleged threat of termination amounted to adverse employment action under USERRA, stating that the initial complaint did not make any specific allegations that Gordon had asserted USERRA rights to his manager at Wawa when he was ordered to work.

>The ruling in the case, which is Wanda Gordon v. Wawa Foods, is available at .