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Four years before her induction into the military, Cathy had been a store manager at a pharmacy. She returned from active duty and accepted the position of assistant manager at the pharmacy with the expectation that she would be assigned to a managerial position as soon as possible. By accepting the assistant manager position, did Cathy waive her USERRA rights to reemployment?
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Answer: |
No. In this situation, Cathy’s acceptance of the inferior position was not conduct that the employer could claim acted as a waiver of her reemployment rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA).
Waivers of rights under USERRA, whether explicit or implied through conduct, are permissible so long as they are clear, convincing, specific, unequivocal and not under duress. Generally, however, only known rights that already have matured can be waived. If a veteran accepts a position with the employer other than the one to which he or she is entitled, the veteran has not necessarily waived the right to be reemployed in the proper position. But if the veteran is given the full opportunity to be reinstated in his or her original position and then decides to remain in a lesser position that the veteran has accepted, then the veteran’s rights of reemployment are considered to have been waived. Nevertheless, the waiver of reemployment rights does not constitute a waiver of rights to damages for an employer’s previous breach of its reemployment obligations.
Source: CCH When Duty Calls; Military Leave and Veterans’ Rights.
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