Geoffrey M. Gilbert, Jr.

Geoffrey M. Gilbert, Jr. Partner

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Reminder – Do not forget about the Uniformed Services Employment and Reemployment Rights Act (“USERRA”)

USERRA provides that an individual who leaves employment for military service shall not be denied any “benefit of employment” due to that service. 38 U.S.C. Sec 4311(a).  In Huhmann v. Federal Express, a recent case decided by the Ninth Circuit, Dale Huhmann (“Huhmann”) claimed that when he returned to work from military service he was entitled to a $17,700 bonus instead of the $7,400 he received.  In support of his claim Huhmann, who was a pilot for Federal Express with a crew status of 727-SO at the time of his leave, argued that the amount of the bonus was predicated on the highest crew status held by a pilot between June 1, 2004 and October 30, 2006.  Huhmann further argued that if he had not left his employment for military service he would have achieved the higher crew status of MD-11-FO and been entitled to a bonus of $17,700.

In affirming the District Court’s decision in favor of Huhmann, the Ninth Circuit Court of Appeals relied on two doctrines used to determine the status or position a service member is entitled upon returning to work.   First the Court relied on the escalator principle doctrine. This doctrine provides that a returning service member must be returned to the position the employee would have been in if the employee’s employment had not been interrupted by military service.

Second the Court relied upon the reasonable certainty doctrine.  Under this two step doctrine the court must initially look forward and determine if an employee would have secured a certain position had the employee’s employment not been interrupted by military service.  Next, the court must look back and determine if the employee has, or would have, completed the necessary prerequisites for the position in question.

The purpose of each of these principles is to ensure a service member’s career progress is not hindered by his/her military service. Applying these two doctrines to the facts of the case, the Court determined that it was reasonably certain that absent his military service Huhmann would have become a MD-11-FO and been entitled to the $17,700 bonus. The Court relied on several facts to support its conclusion, including that Huhmann had significant military and civilian pilot experience and positive prior job performance, other candidates in the MD-11-FO training program were given multiple opportunities to pass portions of the training, and Huhmann had been accepted into and was scheduled to begin the training before his military leave began.

Most Human Resource professionals have not had a lot of experience dealing with USERRA, but they should be aware of its various provisions concerning the treatment of service members as USERRA often is regarded as providing the highest level of protection of all employment laws.  The case referenced above highlights application of one aspect of USERRA to one specific fact scenario. Truly understanding USERRA, however, requires knowledge of all aspects of the law such as the amount of leave an employee can take and how much notice an employee must give an employer before returning from leave. As with almost all employment law scenarios, the specific facts and circumstances of each situation must be analyzed in light of the underlying legal principles before reaching a final conclusion.

The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters for over sixty years, and are available to discuss these issues and others.  As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.

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