Employee Laid Off After Military Leave Has No USERRA Claim

The Uniformed Services Employment and Reemployment Rights Act (USERRA) requires returning employees to be re-employed in the position they would have been employed in had their employment not been interrupted by military service. This is known as the “escalator principle.”  The basic idea is that the employee should be moved (up or down) as if he or she had continued to ride the escalator of employment. 

In Milhauser v. Minco Products, Inc. (8th Cir. 2012), Milhauser was a maintenance technician with an inconsistent and sometimes poor performance record. During his employment, Milhauser took three military leaves of absences. While he was on his third, a decline in business caused Minco to begin a series of layoffs. As part of the second round of layoffs, Milhauser’s supervisor was required to reduce his staff by four. The supervisor assessed job duties, technical expertise, and subjective factors such as attitude and work ethic, and included Milhauser in the group selected for layoff. Upon his return from military leave, Milhauser was dismissed.

Milhauser sued claiming that Minco failed to provide proper re-employment as required by USERRA. The Eighth Circuit Court of Appeals rejected Milhauser‘s claim and held that a layoff is a viable “position of employment” if, consistent with the escalator principle, the employee would have been laid-off regardless of the interruption due to his military service. 

USERRA re-employment rights can be tricky.  When managing an employee who is on leave protected by USERRA, contact MSEC to review the employee’s leave and reinstatement rights.