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.
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
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.