Armed Services Members receive special considerations under a federal law known as USERRA, which requires employers to reemploy employees who return from military duty absent strictly construed exceptions. A recent case, Davis v. Crothall Services, 2013 U.S. Dist. LEXIS 119264 (M. D. Pa. August 6, 2013) (Gibson, J.), illustrates the protections afforded to returning military members. In Davis,the Plaintiff served a tour of active military duty and alerted his employer of his desire to be reemployed upon his return. The court found that a number of USERRA issues raised by the employer did not preclude the Plaintiff from proceeding with his USERRA claims at trial.
After his third deployment and military leave of absence, the employer argued that its Central Region where the employee had been employed as a Regional Operations Manager experienced a downturn in economic activity and claimed that the Plaintiff’s job was eliminated. However, the Plaintiff pointed to evidence that when he took his leave, an Acting Manager was appointed and when the Region office closed, a vacant Manager position was posted in the employer’s Eastern Region. When the Plaintiff returned from military leave, the employer claimed that his former position was not available, there were no Manager positions available and instead, offered the Plaintiff jobs significantly below the responsibilities of his former Manager position.
The Defendant employer argued that it complied with USERRA and did not violate the statute’s reemployment provisions based on the affirmative defense of “changed circumstances” which provides an exception to mandatory reemployment if “the employer’s circumstances have so changed as to make such reemployment impossible or unreasonable.” In so doing, the employer claimed that declining business in its Central Region led to the elimination of Plaintiff’s previous position, and in turn made reemployment impossible. The employer also claimed that the offer of the lower ranking positions (which it claimed had the same pay and benefits as the former Manager position) resulted in a forfeiture of USERRA rights.
For more information on USERRA and Abramson Employment Law, see http://www.job-discrimination.com/lawyer-attorney-2122137.html