## Facts

- Michael Serricchio worked for Wachovia Securities LLC (successor to Prudential) as a commission-based financial advisor and served in the U.S. Air Force Reserve.
- After being called to active duty following the September 11, 2001 attacks, his client accounts were handled by other advisors.
- While he was deployed, the advisors servicing his accounts left or were discharged, and his accounts were reassigned, substantially reducing his pre-service client base and commission-generating capacity.
- Serricchio was honorably discharged in October 2003 and, in December 2003, requested reemployment through counsel under the Uniformed Services Employment and Reemployment Rights Act (USERRA).
- Wachovia did not reemploy him for nearly four months and ultimately offered a financial advisor position at the same commission percentage as before, but without meaningful restoration or approximation of his prior book of business.
- Wachovia offered a $2,000 monthly draw while he attempted to rebuild his client base; Serricchio contended the offer reduced his status and earning potential compared to where he would have been absent military service.

## Issues

1. Whether Serricchio’s reemployment request through counsel was sufficiently clear and unconditional to trigger USERRA’s reemployment obligations.
2. Whether USERRA’s requirement of reemployment in a position of like “seniority, status, and pay” is satisfied in a commission-based job by offering the same commission rate without restoring or approximating the servicemember’s pre-service book of business and expected earnings.
3. Whether a nearly four-month delay after a valid request violates USERRA’s duty to provide “prompt” reemployment.
4. Whether the evidence supported a finding that Wachovia’s USERRA violations were willful, justifying liquidated damages.
5. Whether the district court had authority under USERRA to order reinstatement with a fixed salary during retraining and other terms intended to approximate the servicemember’s escalator position.

## Decision

- The Second Circuit affirmed the district court’s judgment in full.
- The court held that the evidence permitted the jury to find Serricchio made an adequate request for reemployment, and that Wachovia failed to reemploy him promptly.
- The court held that offering only the same commission rate, without accounting for the book of business and earning potential Serricchio would have had but for military service, could violate USERRA’s “like seniority, status, and pay” requirement.
- The court affirmed the back pay award ($389,453) and an equal amount in liquidated damages based on willfulness, plus prejudgment interest, attorneys’ fees, and costs.
- The court affirmed equitable relief ordering reinstatement with salary and related conditions designed to approximate the position Serricchio would have held absent military service.

## Legal Principles

- USERRA requires reemployment in the “escalator position,” meaning the position the servicemember would have attained with continuous employment, absent military service.
- In commission-based employment, compliance with USERRA may require restoring or reasonably approximating the servicemember’s book of business and resulting earning capacity; identical commission percentages alone may be inadequate.
- USERRA requires “prompt” reemployment after a valid request, and unreasonable delay can support liability.
- Liquidated damages are available when the employer’s USERRA violation is willful and may equal the amount of lost wages and benefits awarded as back pay.
- USERRA authorizes broad equitable relief to make the servicemember whole, including tailored reinstatement terms designed to approximate the escalator position.

## Conclusion

The Second Circuit held that USERRA protections extend to the practical earning capacity of commission-based employees: a returning servicemember must be promptly reemployed in a role comparable in seniority, status, and pay, which for a financial advisor may require accounting for the book of business and expected earnings the employee would have had absent military service.


Serricchio v. Wachovia Sec. LLC, 658 F.3d 169 (2d Cir. 2011)