“Darian claims that we took too long to reemploy him after the completion of his military duty,” said HR Manager Alan Frankel. “He’s suing us under the Uniformed Services Employment and Reemployment Rights Act (USERRA).”
“We acted in good faith with Darian,” said Supervisor Margie Brunton. “While he was on military duty, he was diagnosed with a heart condition. Because he had a safety-sensitive job, we couldn’t reemploy him in his old position until he obtained a medical waiver, and that took a while.”
“Darian claims that while he was waiting for the waiver, we could’ve reemployed him in a comparable position,” said Alan.
“We did eventually offer him a different job, but he turned it down,” said Margie.
“Darian alleges that it took too long for us to come up with the comparable position,” said Alan. “He says that it was eight weeks from the time we learned about his heart condition until we offered him the other job.”
“Under the circumstances,” said Margie, “I thought we moved pretty quickly. Besides, the medical waiver eventually came through and Darian was able to go back to his original position.”
“Yes, but that was five months after Darian was eligible to return from leave,” said Alan. “He says he had to continue his military service for that additional time because we stalled.”
“We had no control over the waiver process,” said Margie. “Why would we intentionally slow things down? We did everything we were required to do under USERRA. We should fight this lawsuit.”
Did the company win?
No. The company lost. The court ruled that the employer violated USERRA because it took too long to offer a comparable position to the returning service member.
While acknowledging that the company didn’t control the medical-waiver process, the judge noted that it took the company eight weeks from the time it learned of the man’s heart condition until it offered him a comparable position. Even though USERRA doesn’t spell out a specific time frame for reemployment, the court said eight weeks was too long.
During those eight weeks, said the judge, the company should’ve been able to identify other positions that the worker could’ve filled.
What it means: You have to move pretty quickly
It pays to remember that USERRA is intended to provide a considerable amount of latitude to returning military service members. The law says that companies must treat these workers as though they never left for military duty.
That means you’re required to return them to their prior positions. If the job has been filled or there’s some other reason that the person can’t be reemployed in the position right away, you have to identify other jobs with comparable pay and benefits. While the law doesn’t provide a specific time frame, you should assume that you have to act pretty quickly. In this case, the court said eight weeks was too long.
Based on Major General Thomas P. Harwood III v. American Airlines, Inc.
(From the Aug. 14, 2020, issue of HR Manager’s Legal Alert for Supervisors. To download the current issue right now, please click here.)