The Uniformed Services Employment and Reemploy- ment Rights Act (USERRA) was designed to protect the employment rights of on-duty military personnel. Employers need to be aware of its provisions and standards. In Dorris v. TXD Services, the U.S. Court of Appeals for the Eighth Circuit considered the equal treatment  standard.

Mobilization orders

The plaintiff began working for TXD Services in early 2007. In April 2007, as a member of the Arkansas Army National Guard, he received notice that he’d be mobi- lized within six months for Operation Iraqi Freedom. After receiving definite mobilization orders in early September, the plaintiff spoke with TXD’s manag- ing partner about whether the company would make up the difference in his sal- ary while he was deployed. The managing partner replied, “If you’re not working for me, I can’t be paying you.”

The plaintiff reported for training on Oct. 1. Later that month, he received a letter at home from TXD’s benefits administrator advising that he was eli- gible for continuation coverage under COBRA. The plaintiff’s wife called and told him he’d been fired. The plaintiff then called TXD’s HR department and was told that he was “terminated for not showing up to work.” The plaintiff requested that the managing partner contact him but he never did.

Company sale

The plaintiff served on active duty in Iraq for about 12 months, beginning in January 2008. In February of that year, TXD sold substantially all of its assets to Foxxe Energy Holdings, LLC. The sale contract included as an exhibit “a listing of all personnel currently employed  by TXD to operate the Equipment, their job titles and descriptions, and current salaries.”

TXD failed to include the plaintiff’s name in this exhibit. He returned home on tem- porary leave in August 2008 and, after speaking with friends, he learned that Foxxe had hired all of TXD’s employees. No unemployment claims were asserted against the company following the sale.  The plaintiff returned to the United States and was ready to resume work on Dec. 15, 2008. Foxxe hired him to the same position he had held at TXD in April 2009.

The plaintiff sued TXD in November 2010 alleging that the company had violated USERRA by firing him while he was deployed. Specifically, the plaintiff argued that TXD had violated the law by not placing his name on the exhibit of current employees. The district court granted the company’s motion for summary judgment, noting that, though the plaintiff was on active long- term military duty, TXD wouldn’t have considered him an active or current employee. Therefore, the court held, the plaintiff wouldn’t have made the list provided to Foxxe and no USERRA violation occurred. The plaintiff appealed.

Period of service

The Eighth Circuit reversed the district court’s judgment and held that TXD had violated its USERRA obliga-  tions to the plaintiff while he was on leave. Relying on a specific USERRA provision, the court noted that, when  an employee is on leave to perform military service, his guaranteed right to benefits not determined by seniority isn’t “dependent on how the employer characterizes the employee’s status during a period of service.” When it comes to rights and benefits not determined by seniority, the law requires employers to treat employees taking mili- tary leave equally, though not preferentially.

Applying this equal-treatment standard, the Eighth Circuit first asked whether being placed on the list TXD provided to Foxxe was a benefit not determined by seniority. The court again looked to the statute and found that it defined “benefits” broadly. Combined with the remedial nature of USERRA and the fact that most, if not all, active TXD employees were hired by Foxxe, the Eighth Circuit con- cluded that a reasonable jury could find that being named on the list was a benefit not determined by seniority.

Final issue

The final issue then was whether TXD had violated USERRA by denying the plaintiff a benefit not deter- mined by seniority. TXD submitted an affidavit from the district manager reciting that no employee absent because of long-term military leave was on the list.

But the affidavit never addressed whether TXD also excluded from the list employees who were then on long- term leave for reasons other than military service. The district court improperly determined that it was the plain- tiff’s burden to offer evidence that the company allowed employees on nonmilitary leave of absence to remain on any list of active or current employees.

The Eighth Circuit concluded that, because the plaintiff alleged his military service was a “motivating factor” in his not being on the list, the burden instead shifted to TXD. The company had to show that the same action would have been taken in the absence of military service.

Careful decisions

USERRA’s provisions are very specific. Employers must ascertain precisely what’s required under the law before making any employment decisions about someone who is or has been out on military leave.