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By:  Rob Dare – 11/11/15

On this day, November 11th, we would like to extend our sincerest thanks to all the brave men and women who have served, and continue to serve, in the armed forces. It is important to recognize, celebrate, and honor America’s veterans for their patriotism, love of country, and willingness to serve and sacrifice for the common good.

Military service and employment law may seem worlds apart, but they are sometimes brought together through The Uniformed Services Employment and Reemployment Rights Act (“USERRA” or “the Act”). Generally, USERRA is designed to protect civilian job rights and benefits for veterans and members of Reserve components. The law and its regulations cover a number of topics, but here are the key highlights:

  • Discrimination
    o A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.
    o An employer engages in a prohibited action if the person’s membership, application for membership, service, application for service, or obligation for service in the uniformed services is a motivating factor in the employer’s action, unless the employer can prove that the action would have been taken in the absence of such membership, application for membership, service, application for service, or obligation for service.
  • Reemployment
    o Any person whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits of the Act, so long as he/she gave notice to his/her employer in advance of his/her deployment, was absent for five years or less, and seeks reemployment.
    o However, there is no right to reemployment if the employment from which the person leaves to serve is for a brief, nonrecurrent period, and there is no reasonable expectation that such employment will continue indefinitely or for a significant period. In such an instance, it would be the employer’s burden of proving the brief or nonreccurent nature of the employment without a reasonable expectation of continuing indefinitely or for a significant period

The Sixth Circuit Court of Appeals recently had the opportunity to explain the boundaries of reemployment rights under USERRA in Slusher v. Shelbyville Corp., No. 15-5256 (6th Cir. 2015). Plaintiff Richard Slusher, an orthopedic surgeon and military reservist, began a 30-day assignment at Heritage Medical Center (“Heritage”), which was renewed several times. Heritage was searching for a full-time orthopedic surgeon, and it offered the position to Slusher but he declined. Instead, Slusher signed a one-year contract with Heritage to serve as its orthopedic surgeon. The contract could be terminated by either party for any reason so long as 90 days’ notice was provided, and it did not provide for renewal or extension.

About two months later, Slusher received military orders that he was being deployed to Iraq. He informed Heritage the next day and Heritage informed him that it was continuing its search for a full-time, permanent orthopedic surgeon. While in Iraq, Slusher was notified that his employment would cease in 90 days, on Oct. 25, 2011. Slusher returned before the end of the 90 days and he continued worked at Heritage for two weeks before effective termination.

Slusher sued Heritage, asserting claims for discrimination and violation of reemployments rights under the USERRA. The trial court dismissed the case and the Sixth Circuit affirmed. According to the Sixth Circuit, there is no right to reemployment if the employment from which the employee is deployed is for a brief, non-recurrent period. Because Slusher’s contract was for one year and did not provide for renewal or extension, his employment was for a “non-recurrent period” with no “reasonable expectation” that his employment would “continue indefinitely.”

Slusher’s remaining employment term, which was measured in weeks or months, was not for a “significant period.” Although Slusher’s at will status was a factor, the court cautioned that the at-will nature of a contract should not always weigh as heavily as it did here, where all parties contemplated that Heritage intended to invoke the at-will clause as soon as it could, in order to hire a permanent orthopedic surgeon.

With respect to the discrimination claim, the court concluded that Heritage would have terminated Slusher’s employment notwithstanding his military service. Specifically, the court emphasized that Heritage sought to find an orthopedic surgeon to work at the hospital permanently (a position Slusher had been offered and declined), and to that end, the hospital signed Slusher to a one-year contract that it could terminate at-will when it found the best candidate. Further, the court observed, the hospital was seeking Slusher’s replacement before it knew he was deployed, and at the time he was hired, the hospital knew he was subject to deployment. Therefore, the court held,

Heritage sought to replace Slusher because it wanted a permanent surgeon, not because of his military service.
The aim of the Act – preserving the employments rights of veterans – is a noble one, and as employer and citizen alike, in order to support your employees in the reserve and National Guard, it is important to be aware of the obligations of both parties. Again, with heartfelt gratitude we thank all who have served our country and wish everyone a happy Veterans’ Day.