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USERRA doesn’t require veteran’s preference

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in Employment Law,Human Resources

Over the past decade, ­employers have struggled with how to re-­­­­­­­employ soldiers whose military duties have required them to be absent from work, sometimes for extended periods. Finally, years after the Uni­­formed Ser­­vices Employment and Re­­em­­ploy­­ment Rights Act (USERRA) was amended after the Sept. 11, 2001, terrorist attacks, courts have begun to bring clarity to the law.

Simply put, USERRA is not a veteran’s preference law. It merely guarantees that service members can return to work no better or worse off than if they never left.

Recent case: Douglas Milhauser worked for Minco Products as a maintenance technician. It seems he wasn’t a good employee. Supervisors complained that his repairs sometimes left equipment in worse shape than before. Plus, he was argumentative and took too long to complete tasks, according to his bosses.

Milhauser was in the Air Force Reserve and was called to duty several times. The last time he returned, he found a changed company. The economic downturn had hurt business, and it had to cut staffing in several departments, including Mil­­hauser’s. His job was eliminated, and he wasn’t picked to fill other open positions because the company felt he wasn’t the best candidate.

He sued, alleging that under USERRA he had an absolute right to return to his job no matter what had happened during his absence.

The court disagreed. It said USERRA isn’t about veteran’s pref­­erence, but merely puts re­­turning service members in the same position they would have been had they not served. In this case, that meant Milhauser would have lost his job even if he hadn’t been deployed and would have missed out on open positions on account of his poor performance. The court dismissed his lawsuit. (Milhauser v. Minco Products, No. 09-3379, DC MN, 2012)

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