USERRA: Another worry when using independent contractors

Under the Uniformed Services Em­­ployment and Reemployment Rights Act (USERRA), employees called to active military service are entitled to return to their jobs.

That’s not true of independent contractors. But they must really be independent contractors.

Recent case: Andrae Evans, a member of the New York Army Air National Guard, was working for MassMutual when he was called to active duty in Iraq. Two years later, he was released from duty and reapplied, demanding a promotion he claimed he would have earned if he hadn’t served. MassMutual refused and Evans sued.

MassMutual argued he had signed an agreement saying he was an independent contractor. The court said that wasn’t enough and wanted proof that Evans was really not an employee. (Evans v. MassMutual, No. 09-CV-6028, WD NY, 2012)