Road Haulage Outfit Con-way Freight Accused of Short Changing Naval Reservist

US – The US Department of Justice (DoJ) has filed a lawsuit against Con-way Freight over allegations that the company violated the Uniformed Services Employment and Reemployment Rights Act (USERRA) by failing to promptly reassign Naval Reservist Dale Brown to his former position as a driver with appropriate seniority once he notified the company that he had fully recovered from a temporary service-related medical disability.

According to the complaint, filed in the District Court for the Northern District of Illinois, Brown began working for Con-way in November 1987 as a driver sales representative (DSR). In 2006, Brown was working at Con-way’s Rock Island, Illinois, facility when he deployed for active duty. While in Iraq, Brown suffered a serious shoulder injury in a truck accident during a night mission and returned to Con-way in 2009 following an honourable discharge. Con-way placed him in a lower-paying position due to medical restrictions that prevented him from returning to his original position. By 2012, Brown had made a full recovery and notified the company that he was able to resume work as a DSR without medical restrictions.

Con-way stands accused of refusing to return Brown to his former position and instead made him apply for open positions as they became available. Some months later, Brown was eventually hired again as a DSR but Con-way treated him as a new employee with no seniority to bid on assignments. As a result, Brown effectively received a 40% reduction in pay compared to what he was earning in the same role prior to his military leave. He also no longer has a regular work schedule because his seniority was not restored upon reinstatement and he must call in each day to see if and for how long he will work on a given day.

Under USERRA, employers are obliged to promptly reemploy returning service-members and place them as near as possible in the position that they would have been in absent military service, or a position of similar seniority, status and pay. For service-members like Brown who return with a service-connected disability, the reemployment obligation extends to providing accommodations to the service-member, which can include a temporary position until they have recovered and are able to return to their proper reemployment position. Contrary to these requirements, Con-way are accused of violating the act by treating Brown as a newly hired DSR, with no accrued seniority, rather than placing him in the position that he would have held had he not served his country and suffered a serious and debilitating injury that required temporary accommodation.

The lawsuit seeks an adjustment to Brown’s seniority date as a DSR to his pre-deployment date with back wages for Con-Way’s six month delay in reemploying Brown once he asked for reinstatement as a DSR following his medical clearance, and his inability to bid on desirable shifts and routes due to his lack of seniority. Acting Assistant Attorney General Jocelyn Samuels for the Civil Rights Division, said:

“Employers have a legal obligation under USERRA to accommodate service-members who suffer a disability while serving their country. The Civil Rights Division is committed to protecting the rights of those who have served their country through military service.”

This case stems from a referral by the US Department of Labor following an investigation it’s Veterans’ Employment and Training Service and is now being handled by the Employment Litigation Section of the Civil Rights Division.

Con-way freight has been quick to respond to the allegations stressing the group’s commitment to creating opportunities for veterans and reservists as we have highlighted in previous pieces and has issued the Handy Shipping Guide with the following statement:

“Con-way Freight understands how difficult it can be for veterans when they return home after serving our country. Con-way has been recognised for its commitment to supporting our employees while they are deployed and when they return to civilian life. Specifically, the company received the Freedom Award from the US Department of Defense, the highest honor a private employer can receive for support of Guard and Reserve employees.

“Consistent with that commitment, Con-way supported Dale Brown when he returned home in 2009. Contrary to the allegations of Mr. Brown and the Department of Justice, the company went well beyond the requirements of the Uniformed Services Employment and Reemployment Act. Con-way not only reemployed Mr. Brown, but it specifically created a position for him when he was unable to perform his prior duties due to a permanent shoulder injury he had suffered during his last deployment.

“Con-way proudly supported Mr. Brown during his deployment, and welcomed him back as it has done for hundreds of Con-way employees who have been called to serve our country as members of the National Guard and Reserves. Con-way is disappointed that the Department of Justice brought this action against our company. The complaint contains a number of factual and legal misstatements. Con-way is eager to present its case and demonstrate that the allegations made are unfounded.”