USERRA: The Uniformed Services Employment and Reemployment Rights Act is Strictly Construed and Requires Employers to Reemploy Armed Services Members Who Return from Active Duty

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.

In Davis, the court found that the question of whether or not the Central Region Manager job was in fact eliminated was fundamental to Defendant’s claim that circumstances had changed so drastically as to exempt it from reemploying the employee and that a reasonable jury could determine on the basis of Plaintiff’s evidence that the position was only transferred in location and given other accounts to increase the company’s efficiency without increasing overhead, thus, a genuine dispute of material fact existed as to whether or not the pre-deployment position was actually eliminated, which would have to be decided by a jury. The court also rejected the employer’s other arguments, noting that USERRA’s regulations provide that an employer may not refuse to reemploy the employee on the basis that another employee was hired to fill the reemployment position during the employee’s absence, even if reemployment might require the termination of that replacement employee. As to the other positions offered to the Plaintiff, the court found that a reasonable jury could determine that the positions were unacceptable replacement positions under USERRA and Plaintiff could not be penalized for not accepting any of them. Specifically, the court noted that case law establishes requiring a veteran to accept inferior positions while pending the outcome of litigation against the employer in order to preserve benefits would create a condition not included in the terms of USERRA and would be a violation.

For more information on USERRA and Abramson Employment Law, see


Leave a comment

Filed under Employment Law, USERRA: Uniformed Services Employment and Reemployment Rights Act

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s