Employment Law Blog

News, trends and analysis in employment law and HR

Sep 24, 2013

Reemployment rights after military service may be broader than you think

 

A returning military servicemember has the right to be reemployed in the position they would have held if not for their military obligations, pursuant to the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), but those rights can become ambiguous when the company eliminates the employee’s position while he/she is gone.

A returning military servicemember has the right to be reemployed in the position they would have held if not for their military obligations, pursuant to the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), but those rights can become ambiguous when the company eliminates the employee’s position while he/she is gone. In a recent example of an employer who may have failed its obligations under USERRA, a company sold a storage unit facility where the military servicemember had been resident manager prior to his military service. The company terminated the employee upon sale of the facility, relying on the idea that his position had been eliminated making reemployment impossible. But when the employee filed a lawsuit, the court stated that the company’s obligations don’t end once the veteran’s position is eliminated. The company has an ongoing obligation to evaluate whether there are positions of like seniority, status, and pay to which the veteran could be restored (e.g. a different storage facility owned by the company). The employee will now present his case to a jury to decide whether his USERRA rights were violated (Grove v. Assured Self Storage, ED Texas, June 2013).

Tips: It’s best to tread lightly when it comes to denying reemployment rights to a returning veteran. USERRA requires the employer to make extraordinary efforts to evaluate what the status of the employee’s job would have been, if not for the military service, including any training opportunities, pay increases, and promotions. Given the sensitivity around terminating a returning veteran, you should always consult your Vigilant staff representative before making your decision. You should also review our Legal Guide, “Veterans’ Employment Rights Law” (774).

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