Few, if any, civil rights or employment laws have been construed more favorably to employees than the Uniformed Services Employment and Reemployment Rights Act (commonly referred to as “USERRA”), 38 U.S.C. §§ 4301-35. But in a recent decision, the Sixth Circuit Court of Appeals affirmed a district court’s grant of summary judgment in favor of an employer, concluding that the employee was not entitled to reemployment under § 4312 of the statute. Slusher v. Shelbyville Hosp. Corp., — F.3d –, No. 15-5256, slip op’n at 5-7 (6th Cir. Oct. 26, 2015). In so doing, the Court applied a USERRA provision that creates an exception to the right of reemployment where “the employment from which the person leaves to serve in the uniformed services is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.” § 4312(d)(1)(C) (emphasis added).
Three key facts tied into the court’s conclusion that Slusher’s term qualified under the exception: (1) the plaintiff was under a contract that would last, at most, one year; (2) the contract did not provide for renewal or extension; and (3) the employer was actively seeking another employee to fill the role on a permanent basis (plaintiff did not want to fill the role on a permanent basis). Slusher, slip op. at 5. Avoiding a bright-line rule, as courts often do, the Slusher panel sidestepped the question of whether a one-year employment term necessarily qualifies as “brief” under this exception. Instead, the court concluded that “Slusher’s employment term was brief because both parties would have contemplated that it would last up to one year but most likely less.” Op. at 5.
Notably, the employment contract was at-will, which the court indicated should be “given substantial weight.” Op. at 5. But employers should consider this language with caution. The decision really turned on the fact that the parties knew that the employer intended on replacing the employee with a permanent employee as soon as possible, that is, by invoking the at-will nature of the contract. So, while employers may consider at-will status when examining whether an employee’s term qualifies as “brief” and “nonrecurrent,” the employee and employer’s collective expectation as to the duration of the term is the more material consideration.
You can find the full opinion here.
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