In previous articles, we have discussed the Uniformed Services Employment and Reemployment Rights Act. A recent case held that under USERRA, an employer can terminate a returning veteran.
Under USERRA, employees returning from military leave must be reemployed in the position of employment in which they would have been employed had their continuous employment not been interrupted by military service. That position of employment is known as the “escalator position.”
In the case, while the employee was on active duty, his employer decided it had to down-size its workforce due to loss of business. It took a thorough analysis of its employees, focusing on job duties, technical skills and subjective factors, such as attitude and work ethic.
The employee on active duty ranked near the bottom in all of the categories. He was one of three employees recommended for termination, and he was dismissed when he reported for work after his discharge.
Did the termination violate USERRA? How can being fired be the same as reinstatement?
The court held that USERRA’s escalator doctrine may result in the returning employee to be reemployed in a higher or lower position, be paid off or even terminated. In the reported case, if the employee had not been called into active service, he would have been terminated. USERRA does not provide a different result.