In the past, we have discussed the Uniformed Services and Reemployment Rights Act, also known as USERRA.
Under USERRA, an employee on military leave is entitled to the same non-seniority based rights and benefits enjoyed by other employees who are on a leave of absence. A recent case applied this concept in an unusual case.
An employee’s National Guard unit was deployed to Iraq. He served on active duty for more than a year.
While the employee was in Iraq, his employer sold substantially all of its assets to an unrelated company. The buyer took over the relevant operations after the sale.
In the purchase agreement, the buyer agreed to make reasonable efforts to offer employment to a list of active employees provided by the selling company.
All of the employees on the list supplied by the selling company were hired by the buyer. However, the employee on military leave was not on the list, and he was not hired by the buyer when he returned from Iraq.
Did the selling company violate USERRA? It argued no, claiming that it did not have to rehire the employee returning from military leave because it was no longer a going concern.
The court disagreed, and allowed the case to proceed. It held that if the selling company had placed on the list all active employees to be hired by the buyer, then it should have placed the employee on military leave on that list.
When it didn’t, the employee could maintain a claim for the damages he suffered when he was not hired by the buyer.