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The Wagner Law Group Description 

The Wagner Law Group, A Professional Corporation, is a nationally recognized ERISA & employee benefits, estate planning, employment, labor & human resources practice. 

 

Established in 1996, The Wagner Law Group has 19 attorneys engaged exclusively in employee benefits, estate planning and employment law. Five of our attorneys are AV rated by Martindale-Hubbell as having very high to preeminent legal abilities and ethical standards. The firm is among the largest ERISA boutiques in the country. Our practice is national in scope, with clients in more than 40 states and several foreign countries.

 

 

 

 

 

Contact Info

The Wagner Law Group

 

Massachusetts Office 

Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110


Florida Office 

Tel: (561) 293-3590
Fax: (561) 293-3591
7121 Fairway Drive
Suite 203
Palm Beach Gardens, FL 33418

 

New York Office

Tel: (716) 650-5987

Fax: (716) 633-0301

333 International Drive

Suite B-4

Williamsville, NY 14221

 

San Francisco Office

Tel: (415) 625-0002

Fax: (415) 829-4385

315 Montgomery Street

Suite 902

San Francisco, CA 94104

 

www.wagnerlawgroup.com

 

 

 

 

October 4, 2012 

 State and Federal Law Alert

 

 

 

Court Examines Interplay of COBRA and USERRA

 

 

 

      A federal district court was recently asked to determine whether a COBRA notice sent by an employer to an employee on active military duty provided evidence of discrimination in violation of the Uniformed Services Employment and Reemployment Rights Act ("USERRA"). USERRA generally prohibits discrimination against employees because of military service and provides certain reemployment rights to those returning from active duty.

 

     In Dorris v. TXD Services, LP, an employee who returned from a 15-month period of active military duty sued his former employer, claiming that he was fired because of his military service. While the employee was away on active duty, the employer had sold substantially all of its assets to a successor employer and, as part of the sale, provided a list of current employees to the buyer, who agreed to use reasonable efforts to offer employment to them. However, the employee on military leave was omitted from the list of current employees, thus prompting him to allege that he was fired in because of his military service.

 

     As evidence of the alleged discrimination, the employee cited the COBRA notice he had received shortly after his deployment, which offered him continuation coverage due to his "termination of employment." The employer responded that the employee was considered to be on leave and was, therefore, not included on the list of current employees provided to the buyer. The court agreed with the employer, quoting Department of Labor regulations issued under USERRA, which say an employee on active duty is "deemed to be on furlough or leave of absence."

 

     The court next addressed the "termination of employment" language contained in the COBRA notice. "Although the COBRA letter contained the words 'termination of employment'...that alone does not prove that [the employer] terminated the employee in violation of the USERRA. To the contrary, the 'termination of employment' language is derived from the COBRA statutes, not from...USERRA." Ultimately, the court concluded that a termination of employment for purposes of COBRA was not the same as a termination for purposes of USERRA. Therefore, the employee had presented no evidence to support his claim of discrimination. The court ruled in favor of the employer.

 

     While COBRA and USERRA both provide employees on active military duty with the right to continued health coverage for certain periods of time, Dorris highlights that there are many significant differences between the two laws. For example, USERRA requires employers to reinstate health coverage upon the employee's return, while COBRA does not have this requirement. Plan sponsors must be aware of USERRA's additional health care coverage obligations and understand how these obligations differ from COBRA.

 

     To ensure compliance with USERRA and COBRA, employers should consult with qualified benefits professionals.

 

 

 

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Pursuant to Internal Revenue Service Circular 230, we hereby inform you that any advice set forth herein with respect to US federal tax issues is not intended or written by The Wagner Law Group to be used and cannot be used, by you or any taxpayer, for the purpose of avoiding penalties that may be imposed on you or any other person under the Internal Revenue Code.

 

This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.