1. Did Wachovia offer Serricchio reemployment at terms comparable to the terms of his employment before going on military leave?

2. Did the court determine that Wachovia acted willfully and thus was responsible for liquidated damages or double back pay?

Michael Serricchio, an Air Force reservist, was employed as a financial advisor at Wachovia Securities and called up to active duty in the wake of September 11, 2001. Upon completion of his active duty, he sought to return to Wachovia with comparable earnings potential and opportunity for advancement. In the year prior to his activation for military duty, Mr. Serricchio was personally responsible for servicing in excess of 200 accounts, was responsible for managing in excess of $9 million dollars with his partner and was earning $6,500 per month based on those assets. If Serricchio accepted Wachovia’s reemployment offer, he would have been managing a handful of accounts, generating, according to Wachovia’s own documents, a small amount in monthly commissions that had to be repaid to Wachovia to offset his monthly draw. The employer argued that it provided the same draw and commission structure to the plaintiff and this was sufficient to fulfill its reemployment obligations under Section 4316. Serricchio contended that Wachovia’s offer did not satisfy its obligation to reemploy him in a position of like pay; and the employer’s failure to comply with the USERRA was willful, entitling him to double backpay as liquidated damages.

JUDICIAL OPINION

POLLER, C. J.… The purpose of USERRA is to encourage military service “by eliminating or minimizing the disadvantages to civilian careers”; “to minimize the disruption to the lives” of servicemembers and their employers “by providing for the prompt reemployment” of servicemembers; and “to prohibit discrimination” against servicemembers. 38 U.S.C. § 4301(a).…

Section 4316(a) of USERRA entitles a returning service-member 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 seniority and rights and benefits that such person would have attained if the person had remained continuously employed.” 38 U.S.C. § 4316(a) (emphasis added); 38 U.S.C. § 4313(a)(2)(A) (stating that a servicemember whose period in service exceeds 90 days is entitled to reemployment “in the position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service, or a position of like seniority, status and pay, the duties of which the person is qualified to perform”). USERRA’s regulations explain that this means that “[a]s a general rule, the employee is entitled to reemployment in the job position that he or she would have attained with reasonable certainty if not for the absence due to uniformed service.” 20 C.F.R. § 1002.191. This position is referred to as the “escalator position.” Id….

In the first instance, we note that Wachovia’s failure to reply to Serricchio’s letter requesting reinstatement for nearly two months, coupled with the bank’s failure to actually reemploy him for nearly four months, created a triable issue of fact regarding whether Wachovia violated USERRA. See 20 C.F.R. § 1002.181 (“Absent unusual circumstances, …………………….