The California Court of Appeal recently decided in Perez v. Uline, Inc. that a general release was ineffective against a later claim for wrongful termination in violation of public policy based on the Uniformed Services Employment and Reemployment Rights Act ("USERRA"). However, this decision appears to be inconsistent with a 2006 Georgia federal court decision which suggested that USERRA claims are waivable, provided that the release is "clear, convincing, specific, unequivocal, and not under duress."

USERRA contains language which states:

In Perez, on the day the plaintiff, a captain in the United States Marine Corps Reserves, returned to work, he was told that his employer no longer needed his services. He signed a "severance agreement and release" in return for six weeks' salary. Subsequently Perez sued his former employer alleging, among other things, wrongful termination in violation of public policy — including termination of members of the armed services in violation of USERRA. Applying USERRA's language that it supercedes any contract or agreement limiting rights under that statute, the Court of Appeal held that releases of USERRA claims are invalid.

USERRA claims are likely to become more prevalent as more soldiers return to work from active duty, and employers need to be aware of their obligations under this law. How other courts decide the question of whether USERRA claims are waivable remains to be seen, but Perez should serve as a caution to any employer seeking to have such claims released. We strongly encourage you to consult with your Schiff Hardin Labor and Employment attorney before entering into any severance agreement or other release with an employee who might have rights under USERRA.