Supreme Court Turns Away USERRA Decision
Appeal
May 14, 2009 (PLANSPONSOR.com) - The U.S. Supreme
Court has turned aside a request to review a 6th U.S. Circuit
Court of Appeals ruling finding that an employer had run
afoul of the Uniformed Services Employment and Reemployment
Rights Act (USERRA) by forcing a returning Army reservist to
go through a three-week re-entry process.
The 6
th
Circuit decision issued last year held that police
officer Brian Petty had met all four of the prerequisites
to invoke his rights under USERRA so the employer, the
Metro Government of Nashville-Davidson County, could not
delay his re-employment.
The four requirements were that:
-
Petty notified his employer in advance of his
departure that he would be leaving for military
service;
-
The cumulative length of such military service
was less than five years;
-
Upon his return, he requested reemployment and
submitted proper documentation within the time period
set by statute; and
-
His separation from service was under
"honorable conditions".
Appellate judges said specifically the employer
could not apply its normal return-to-work process used
with employees off the job for an extended period because
USERRA effectively trumped the employer's internal HR
policies.
Petty sued under USERRA but lost at the trial court
level. The 6
th
Circuit threw out that decision in the ruling later
appealed to the Supreme Court.
The 6
th
Circuit also found that the employer did not properly
place Petty into any of the positions of employment
mandated by USERRA. Depending on an employee's
duration of service with the employer prior to the
military leave, employers are required to reinstate
qualified service members under USERRA to one of the
following:
-
a position of employment the person would have
held if the continuous employment of such person had
not been interrupted by military service;
-
a position of employment in which that person
was employed on the date of commencement of service;
or
-
a position of like seniority, status and pay
for the position the person would have ad or did
hold, the duties of which the person is qualified to
perform.
The 6th Circuit decision is available
here
.
Fred Schneyer
editors@plansponsor.com