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USERRA: Termination is a Valid Reemployment Position

By Robyn Hagan Cain on December 06, 2012 3:12 PM

After returning from his third military leave of absence, Douglas Milhauser learned that he had lost his job at Minco Products, Inc. Since federal law mandates that returning veterans be reemployed in an "appropriate position," Milhauser sued.

Minco argued at trial that Milhauser work performance had been poor, and it was forced to reduce its workforce after a bad year. The company asserted that changed circumstances had made reemploying him impossible or unreasonable. In the alternative, the company claimed that it had not failed to place Milhauser in the proper reemployment position because he would have been terminated even if he had not left for service.

The district court ruled for Minco. This week, the Eighth Circuit Court of Appeals affirmed that decision.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) guarantees that returning servicemembers are reemployed in the position they would have occupied had their employment not been interrupted by their military commitment. That position of employment is known as the "escalator position."

The escalator position imagines the employee on a particular step of an escalator, which may move up or down during a military leave. The employee doesn't simply revert to the same position held upon leaving, but is placed in whatever position his or her "step" had moved to during the leave. Here, the jury found that Milhauser had not proven that the company had failed to reemploy him in an appropriate position.

Milhauser appealed, arguing that termination was not a possible reemployment position under USERRA. The Eighth Circuit, however, found that the idea of termination as a valid reemployment position was entirely consistent with USERRA's text and its implementing regulations. (The regulations state that "depending on the circumstances, the escalator principle may cause an employee to be reemployed in a higher or lower position, laid off, or even terminated.")

USERRA doesn't cloak veterans in absolute protection from termination. Despite enhanced safeguards for servicemembers, an employer can terminate a poorly-performing employee during deployment under certain circumstances.

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