by Michael Fox
Obviously in a time where military lives are not only at risk but the center of a hot political campaign, sensitivity to the rights of those who serve in the armed forces in whatever capacity is justifiably great. The 3rd Circuit noted not only the times, but described the circumstances facing it:
The case is of particular interest at this time because of the large number of reservists called up for military duty as a result of the conflicts in Iraq and Afghanistan. The alleged events underlying this action are tragic. Willie Gordon, an active member of the United States Army Reserve, also worked for the defendant, Wawa, Inc., in Vineland, New Jersey. On Sunday, September 17, 2000, on his way home from weekend Reserve duties in Virginia, Gordon stopped by the Vineland store to pick up his paycheck and to obtain his work schedule for the upcoming week. At that time, Gordon's shift manager allegedly ordered him to work that night's late shift, and threatened to fire him if he refused. Willie Gordon complied with the order, and on his drive home from work, lost consciousness at the wheel of his car. His car crashed, and he died as a result of his injuries.
Bringing various state claims, his estate also brought a claim under USERRA, claiming among other things that he was entitled to 8 hours rest after his tour of military service. The district court dismissed the USERRA claim and refused to assert pendent jurisdiction over the state court claims. The 3rd Circuit today agreed. Gordon v. WAWA, Inc. (3rd Cir. 10/28/04) [pdf].
Although there were several aspects of Gordon's attempted USERRA claim, basically they all failed because it is really an employee rights statute. The one section that arguably applied with respect to 8 hours rest, dealt only with an employee's obligation as to when to report to claim rights under USERRA and does not speak to an employer's obligations.