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 .
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