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The Wagner Law Group Description 

The Wagner Law Group, A Professional Corporation, is a nationally recognized ERISA & employee benefits, estate planning, employment, labor & human resources practice. 


Established in 1996, The Wagner Law Group has 23 attorneys engaged exclusively in employee benefits, estate planning and employment law. Seven of our attorneys are AV rated by Martindale-Hubbell as having very high to preeminent legal abilities and ethical standards. The firm is among the largest ERISA boutiques in the country. Our practice is national in scope, with clients in more than 40 states and several foreign countries.






Contact Info

The Wagner Law Group


  Integrity | Excellence


Massachusetts Office 

Tel: (617) 357-5200 

Fax: (617) 357-5250 

99 Summer Street 

13th Floor

Boston, MA 02110

Florida Office 

Tel: (561) 293-3590
Fax: (561) 293-3591
7108 Fairway Drive
Suite 125
Palm Beach Gardens, FL 33418


San Francisco Office

Tel: (415) 625-0002

Fax: (415) 358-8300

315 Montgomery Street

Suite 904

San Francisco, CA 94104


Illinois Office

Tel: (847) 250-1365

Fax: (847) 250-1367

414 West Deerpath Road
Lake Forest, IL  60045  







April 17, 2014


 State and Federal Law Alert




Court Rules Employers Must Treat Employees on Military Leave Like Those on Comparable Leaves




The Eighth Circuit Court of Appeals has held that the Uniformed Services and Reemployment Rights Act ("USERRA") obligates employers to provide employees on military leave with the same rights and benefits as employees on comparable long-term leaves. In Dorris v. TXD Services, LP, the court concluded that these benefits may extend to facilitating the reemployment of the service member by a purchaser of the employer's business.


Background. In Dorris, the plaintiff was working for the employer when he received notice that his National Guard unit was being deployed to Iraq. While he was in Iraq, the employer sold its assets to another company and provided a list of current employees to the buyer, which agreed to make reasonable efforts to hire those on the list. The plaintiff, however, was not included on this list and, consequently, was not hired by the buyer upon his return from Iraq.


The plaintiff sued his former employer in district court, alleging a violation of USERRA's rules regarding reemployment rights. The employer countered that USERRA did not obligate it to rehire the plaintiff. In particular, the employer argued that since it was no longer a going concern, USERRA did not require it to take the plaintiff back. To support its argument, the employer cited USERRA's exception to its general reinstatement requirement for "changed circumstances."


The district court decided in favor of the employer and dismissed the plaintiff's claim. Specifically, the court found that the employer did not violate USERRA's reemployment requirements and that the plaintiff had failed to offer any evidence that he was treated differently than any other similarly situated employees on leaves of absence. The employee filed an appeal of the district court's decision with the Eighth Circuit.


Eighth Circuit's Decision. The Eighth Circuit decided in favor of the plaintiff and reversed the district court's decision, holding that the trial court had misallocated the burden of proof. The Eighth Circuit observed that USERRA requires employers to give employees on active duty the same rights and benefits as employees who are on leaves of absence for other reasons. The Eighth Circuit concluded that, in the present case, one such benefit may include being placed on the list of current employees that the employer provided to the buyer.


Moreover, the Eighth Circuit found that there was no evidence, one way or another, regarding whether employees who were on leave for reasons other than military leave were excluded from the list. The district court dismissed the case because the plaintiff did not offer this evidence.   The Eighth Circuit determined that the district court incorrectly allocated the burden of proof, holding that the employer, and not the employee, had the burden to prove that it would have taken the same action with employees on other types of leave.


Impact of Dorris on Employers. Employers often overlook USERRA's provisions, which establish certain rights for service members. Accordingly, employers should review the benefits provided to employees on other similar leaves of absence to ensure those on military leave are receiving comparable benefits.




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This Newsletter is provided for information purposes by The Wagner Law Group to clients and others who may be interested in the subject matter, and may not be relied upon as specific legal advice.  This material is not to be construed as legal advice or legal opinions on specific facts. Under the Rules of the Supreme Judicial Court of Massachusetts, this material may be considered advertising.