Understanding Your Employment / Reemployment Rights as a Uniformed Service Person:

USERRA—Uniformed Services Employment and Reemployment Rights Act.  39 USC §§ 4301 – 4335.

USERRA is the federal law that protects the employment of persons in the "uniformed services." Persons on Military Leave from their private sector jobs are granted certain rights and protections under USERRA. However, USERRA provides additional rights and protection to those that serve our nation.

Who is protected by USERRA?

USERRA protects persons who perform duty, voluntarily or involuntarily, in the "uniformed services." These include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps. It also includes the reserve components of each of these services.  Federal training or service in the Army National Guard and Air National Guard also gives rise to rights under USERRA, and certain disaster response work is also covered.

Uniformed service includes active duty, active duty for training, inactive duty training (e.g., drills), initial active duty training, and funeral honors duty performed by National Guard and reserve members. It also includes the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty.

USERRA applies to virtually all United States employers, regardless of the size of the employer.

What conduct is prohibited?

USERRA prohibits employment discrimination against a person on the basis of past military service, current military obligations, or intent to serve.  An employer must not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to a person on the basis of past, present, or future service obligations.  Additionally, an employer must not retaliate against a person because of an action taken to enforce or exercise any USERRA right or for assisting in an USERRA investigation.

What are employers required to do?

A pre-service employer must reemploy service members returning from a period of service in the uniformed services if those members meet the following five criteria:

1. The person must have been absent from a civilian job on account of service in the uniformed services;
   
2. The person must have given advance notice to the employer that he or she was leaving the job for service in the uniformed, unless such notice was precluded by military necessity or otherwise impossible or unreasonable;
   
3. The cumulative period of military service with that employer must not have exceeded five years;
   
4. The person must not have been released from service under dishonorable or other punitive conditions; and
   
5. The person must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment, unless timely reporting back or application was impossible or unreasonable.
   

   
    

Employers are required to provide persons (that are eligible for protection under USERRA) a notice of the rights, benefits, and obligations of such persons and such employers under USERRA.

What happens when a service member returns to his or her civilian job?

Returning service members are to be reemployed in the job that they would have attained had they not been absent for military service. This is referred to as the "escalator" principle. The employer is required to return the employee to the same seniority, status, and pay, as well as other benefits determined by seniority.  USERRA also requires that reasonable efforts, such as training or retraining, be made to enable returning service members to qualify for reemployment.  If the service member cannot qualify for the "escalator" position, he or she must be reemployed, if qualified, in any other position that is the nearest approximation to the escalator position and then to the pre-service position.

What about health insurance or other employment benefits?

Health and pension plan coverage for service members is also covered by USERRA.  Individuals performing duty of more than 30 days may elect to continue employer sponsored healthcare for up to 24 months. However, if they do so, they may be required to pay the full premium.  For military service of less than 31 days, healthcare coverage is provided as if the service member had remained employed.

USERRA's pension protections apply to defined benefit plans and defined contribution plans. It also applies to plans provided under federal or state laws governing pension benefits for government employees.  For these plans, they must be treated as if the service member had continuous service with the employer.

Where can a service member file a complaint if there is a violation?

Service members that wish to file a complaint alleging a violation have two alternatives. First, they can file a complaint with the U.S. Department of Labor, Veterans Employment and Training Service.  If the DOL determines that a violation has occurred, it will try to negotiate a resolution.  However, it has no enforcement authority.  Thus, it will turn the matter over to the Office of Special Counsel in the case of the federal government, or the United State Attorney General.  These officials may pursue the matter, or they may inform the service member that he or she may take action against the employer.

The other alternative is for the service member to file a lawsuit in state or federal court. Employees of the federal government must file an appeal with the Merit Systems Protection Board.

What is the remedy for a violation of USERRA?

USERRA provides for compensatory damages, reinstatement, back pay, lost benefits, corrected personnel files, lost promotional opportunities, retroactive seniority, pension adjustments, and restored vacation. If a violation is determined to be willful, the court may double any amount due as liquidated damages.  USERRA does not allow for an award punitive damages.  However, the court may, in its discretion, award attorney fees and legal expenses.

Legal Issues Surrounding Ohio’s Manual of Uniform Traffic Control Devices

We are pleased to share Attorney Amanda Paar's article regarding Ohio's Manual of Uniform Traffic Control Devices which appeared in this month's edition of Ohio Trial Magazine.

When, if ever, is a stop sign mandated by the Ohio Manual of Uniform Traffic Control Devices?

Anyone who has ever sued a political subdivision for negligence with regard to any traffic signage issue is undoubtedly familiar with the Ohio Manual of Uniform Traffic Control Devices. It is the bible of all things "traffic control device." The law regarding a political subdivision's liability for nuisance has changed, and the terms of the Manual are becoming increasingly important in cases involving traffic control devices.

In general.

The political subdivision immunity analysis contains three tiers. First, there is a "general premise that a political subdivision is not liable for damages caused by any act or omission in connection with a governmental or proprietary function." A "governmental function" includes the "maintenance and repair of roads, highways, and streets."

The second tier of the analysis is to determine whether any of the exceptions to immunity apply. If an exception to immunity does apply, then the third and final tier is analyzed. Namely, whether political subdivision immunity can be reinstated by the statutorily listed defenses set forth in R.C. 2744.03.

The critical inquiry with regard to traffic control devices lies in the second tier of the analysis. The law in this area has significantly changed, and today, affords even greater immunity to political subdivisions than ever before.

The good old days.

The former R.C. 2744.02(B)(3) provided that a political subdivision was liable for injury caused by its "failure to keep public roads, highways, [and] streets * * * within the political subdivisions open, in repair, and free from nuisance * * * ." Items such as malfunctioning traffic signals and overhanging tree limbs that obstructed the view of a traffic signal qualified as a nuisance under the former statute. The focus hinged on whether a condition exists within the political subdivision's control that "creates a danger for ordinary traffic on the regularly traveled portion of the road." Significantly, a political subdivision's failure to maintain a traffic control device that was already in place was grounds for an actionable nuisance claim. The main hurdle for a plaintiff to prove was that the political subdivision had either actual or constructive notice of the alleged nuisance.

And then it all changed.

Effective April 9, 2003, the Revised Code was amended to eliminate the nuisance language that had been in place and developed for decades. The legislature severely narrowed this exception to immunity. Now, political subdivisions are "liable for injury, death, or loss to person or property caused by their negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads." The previous "nuisance" language was changed to "failure to remove obstructions." The new law requires plaintiffs to completely disregard the well-established nuisance law that was created and refined for decades, as it has lost nearly all persuasive authority.

The legislature also added a definition of "public roads" to be used in interpreting whether an exception to political subdivision immunity applies. The new definition of "public roads" includes traffic control devices mandated by the Ohio Manual of Uniform Traffic Control Devices. (The new definition of "public roads" also does not include sidewalks, aqueducts, viaducts, or public grounds. ) Thus, the new law imposes political subdivision liability only when a traffic control device is mandated by the Manual. When the installation of a particular traffic control device is discretionary according to the Manual, there is no liability, regardless of the political subdivision's degree of negligence in its failure to maintain the device. Thus, the pivotal question is: what traffic control devices are mandated by the Manual?

The OMUTCD.

The Manual is part of Ohio law regarding traffic control devices, and as such, a court should take judicial notice of the Manual. A "traffic control device" is all-encompassing. It includes:

all flaggers, signs, signals, markings, and devices placed or erected by authority of a public body or official having jurisdiction, for the purpose of regulating, warning, or guiding traffic.

Read tangentially, is the definition of "traffic control signal," which means:

any device, whether manually, electronically, or mechanically operated, by which traffic is alternately directed to stop, to proceed, to change direction, or not to change direction.

The introduction to the Manual provides three differing levels of authority. "Standards" must be satisfied by the political subdivision. "Guidances" are provisions that should be followed. And "options" may or may not be applicable based upon the particular circumstances of the situation. For plaintiffs, only the provisions of the Manual that qualify as "Standards" impose liability to a political subdivision.

Chapter 2B of the Manual governs regulatory signs such as stop signs. It states, as a standard, that "[r]egulatory signs shall be used to inform road users of selected traffic laws or regulations and indicate the applicability of the legal requirements." A stop sign is included in the definition of a regulatory sign. The Manual provides another standard, stating, "[w]hen a sign is used to indicate that traffic is always required to stop, a STOP sign shall be used," and references a diagram of a stop sign. Using a guidance provision, the Manual states,

STOP signs should be used if engineering judgment indicates that one or more of the following conditions exist:

1. Intersection of a less important road with a main road where application of the normal right-of-way rule would not be expected to provide reasonable compliance with the law;
   
2. Street entering a through highway or street (O.R.C. Section 4511.65 provides information on through highways (see Appendix B2));
   
3. Unsignalized intersection in a signalized area; and/or
   
4. High speeds, restricted view, or crash records indicate a need for control by the STOP sign.
   

Based upon these provisions, alarmingly, a stop sign is never mandated by the Manual.

To date, there is only one significant appellate decision that has discussed the recent change in political subdivision immunity with respect to stop signs. In Walters v. City of Columbus, the court addressed a situation where a driver essentially ran a stop sign, was injured, and sued the City of Columbus for its negligence in failing to remove an obstruction from the stop sign and failing to maintain or repair a public road. The "critical inquiry" before the court was "whether or not the stop sign at issue was mandated" by the Manual. The City argued that based upon the "guidance" provision of the Manual at § 2B.05, the stop sign was not mandated by the Manual, and therefore, no liability attached. The plaintiff argued the "standard" that when a "sign is used to indicate that traffic is always required to stop, a STOP * * * sign shall be used." Plaintiff argued that even though the "original decision to place a stop sign is discretionary," that "once the decision to place a sign is made, the mandates of the manual must be followed, including section 2B.04, thus making them mandated by the OMUTCD." The plaintiff also cited to Franks for the proposition that a political subdivision's failure to maintain the signage already in place constitutes a nuisance claim.

The Tenth District specifically distinguished Franks as non-applicable since the amendment of R.C. 2744.02 and R.C. 2744.01, effective April 9, 2003. It noted the absence of the nuisance language in the new statute and the new definition of "public roads." The court reasoned that if it accepted the plaintiff's logic, then

all traffic control devices would be "mandated" by the OMUTCD and the distinction in the statute between those traffic control devices that are mandated and those that are not would effectively be abrogated to the point of rendering the distinction meaningless.

The court noted the legislature's intent to "limit political subdivision liability for roadway injuries and deaths," and specified that the General Assembly used the word "obstructions" in a "deliberate effort to impose a condition more demanding than a showing of a 'nuisance' in order for a plaintiff to establish an exception to immunity." Similarly, the court read the same legislative intent into the new definition of a "public road" and determined that not all traffic devices are to be considered part of the public road. Accordingly, the court held that the stop sign at issue was not mandated by the Manual.

After this analysis, the court cited several provisions of the Manual where a traffic control device is mandatory. Yield signs "shall be used to assign right-of-way at the entrance to a roundabout intersection." Do not enter signs "shall be used where traffic is prohibited from entering a restricted roadway." A "one way" sign "shall be used to indicated streets or roadways upon which vehicular traffic is allowed to travel in one direction only." "Low clearance" signs "shall be used to warn road users of clearances less than 300 mm (12 in.) above the statutory maximum vehicle height."

Conclusion.

While some traffic control devices are mandated by the Ohio Manual of Uniform Traffic Control Devices, the Court of Appeals for the Tenth District has taken a firm stance that a stop sign is never mandated by the Manual, referencing the marked legislative intent to support political subdivision immunity. The legislature has painted this area of law with a very broad brush in favor of upholding immunity for injuries and death resulting from negligently maintained traffic control devices. Perhaps there will be a split in the districts regarding whether a stop sign is ever mandated by the Manual; time will tell. As practitioners, it is imperative under the new law to scrutinize the provisions of the Manual prior to accepting such cases in order to properly evaluate the likelihood of surviving political subdivision immunity. A copy of the manual should be on the bookshelf of every attorney who challenges political subdivision immunity. The Manual can be downloaded in full or part at http://www.dot.state.oh.us/Divisions/HighwayOps/Traffic/publications2/OhioMUTCD/Pages/default.aspx.