Monday, June 27, 2011

Military reservist loses USERRA case

Evan Hart was a dentist who fought in Iraq. When he returned to work, his boss told him that he would be terminated in 60 days. That 60 days' notice became 30 days' notice when Hart protested. After Hart filed a USERRA complaint with the Department of Labor, the Department told Hart's employer that he could not be fired for 180 days. Management complied with that directive. So, does Hart have a case? No, and it was dismissed during trial in Connecticut. The Court of Appeals affirms.

The case is Hart v. Family Dental Group, decided on May 31. USERRA is the Uniformed Services Employment and Reemployment Act, which grants military reservists certain employment rights. One USERRA provision is quite generous to reservists: upon the employee's return from his military obligations, the employer cannot fire him for 180 days without cause. Apart from the 180 day rule, the employer must re-employ the reservist as if he had never left. As the Second Circuit (Miner, Cabranes and Straub) puts it, "the only question before us is whether [management's] January 20 letter providing Hart with 60-days notice (later amended to 30 days and thereafter amended again to 180 days) and Hart's subsequent termination in accordance with the terms of that letter violated [USERRA]. It did not."

Hart loses the case. When Hart returned from Iraq on January 17, 2005, he got his job back. All was good with the world, until January 20, only three days later, when his boss gave him a letter stating he would be fired in 60 days. There is no showing that Hart was fired for cause, and his ultimate termination after 180 days was legal under USERRA. The Court writes, "the evidence is clear that Dr. Hart was re-employed on his return from his leave for 180 days, with the same seniority and other rights and benefits that he had ... before he left on his tour. That is all [USERRA] requires." Not the most complicated case in the world, decided by the Second Circuit in a published opinion only two weeks after it was argued.


Zack H said...

reemploymnent for set period of time was not restoring his job after inviting him back from Iraq. It was fraud.

Zack H said...

If the reservist had stayed in Iraq he ould have made more money tax free than returning to the practice of the employer, who invited him back to his 4 dental practices then fired him within 3 days. The Federal Disrict Court bifurcated the trial although responsibility and damages were intertwined. The Federal District Court also did not allow the jury to determine if the reservist had been properly reemployed when fired within 3 days or whether the employer retaliated against the reserist by starting an injunction action to prevent him from treating poor school children under a charitable program.