Employees on Leave? Maybe It’s Time to Check-In.

By: Mercedes Pineda

The Eighth Circuit recently served a reminder about the importance of maintaining direct contact with your employees. The employer hired a sergeant in the National Guard. The employee was deployed to Afghanistan and coordinated his military leave through the employer’s third-party leave administrator. Unfortunately, the employee was wounded in action, and was on leave longer than expected. The employee tried to coordinate his reemployment several times. In one call with the third-party leave administrator, he reported that he hadn’t had a response from the employer, and wondered whether he should give two weeks’ notice. The third-party leave administrator believed the employee had resigned, and confirmed the resignation for the employer. The employer changed his employment status to terminated. Still, the employee actually wanted to come back and even applied online for a position.

In May 2016, the employee filed suit under the Uniformed Services Employment and Reemployments Rights Act (“USERRA”). The case hinged on whether the employee had “clearly and unequivocally” resigned and whether he applied for reemployment as required by USERRA. The Eighth Circuit reversed summary judgment for the employer because the employee had presented evidence that he had not “clearly and unequivocally” resigned. Specifically, he asked “if he needed to put in his two weeks’ notice,” and he had reapplied. The employer protested that the employee had not contacted the third-party leave administrator to coordinate his return, but the court ruled his re-application was sufficient under USERRA.

Delegating employment decisions to a third party has risks. Employers should maintain direct contact with employees on any form of leave. This will help avoid communication missteps and ensure a smooth transition back into the workplace.

The case is Scudder v. Dolgencorp, LLC d/b/a Dollar General Store, No. 17-2941 (8th Cir. August 17, 2018).