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OK to cut returning veteran’s job if decision wasn’t based on military status

by on
in Employment Law,Human Resources

Generally, members of the military released from active duty service are entitled to return to their former jobs.

The ­Uni­formed Ser­­vices Employ-ment and Re­­em­­ploy­­ment Rights Act (USERRA) states that the returning service members shall be re-employed “in the position of em­­ployment in which the person would have been employed if the continuous em­­ployment of such person with the employer had not been interrupted by such service.”

But what happens if bad economic times force a layoff before the em­­ployee returns to work? Is he exempt from the cuts? Not according to the 8th Circuit Court of Appeals.

Recent case: Douglas worked as a maintenance technician before being called to active military duty. He left the service early after he had an ad­verse reaction to a vaccine. He wanted to report back to his job. But while Douglas had been deployed, the employer underwent two reductions in force after failing to make a profit.

The second round of layoffs affected Douglas’ department and was based on job duties, skills and other factors. On the day he returned to work, Douglas was informed that his job had been cut.

He sued, alleging he was entitled to return to his job even in the face of a reduction in force.

The court disagreed. It pointed out that USERRA’s language indicates that service members don’t get to keep their jobs if a position was eliminated for nondiscriminatory reasons while they were on active duty. (Millhauser v. Minco, No. 12-1756, 8th Cir., 2012)

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