When is Firing an Employee the Same as Reemploying Him?

By Brooke Colaizzi

The employer in a recent case selected a veteran-employee for layoff, while he was away on military duty.  When the employee returned from service and requested reinstatement, he was terminated.

The Eighth Circuit Court of Appeals recently asked whether the employer had met its obligations under the Uniformed Services Employment and Reemployment Rights Act (USERRA) to return the veteran-employee to the “position of employment” he would have been in had he not left to serve.  The Court answered: yes.  Termination is a valid “position of employment” under USERRA, when the employer proves that the employee would have been terminated even if military service had not interrupted his employment.  Milhauser v. Minco Prods., Inc., No. 12-1756 (8th Cir.  Dec. 5, 2012).

The employer in the case had presented evidence at trial of the employee’s past performance problems and its own economic circumstances.  Such evidence would be critically important in a case like this; the employer had to prove that it really would have terminated the employee if he had been present.

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