The USERRA Oxymoron: Termination as a Valid Reemployment Position

Article excerpt

Milhauser v. Minco Products, Inc., 701 F.3d 268 (8th Cir. 2012)

I. INTRODUCTION

Between 2000 and 2010, more than two million United States soldiers, marines, and sailors served in Iraq or Afghanistan. (1) At times, nearly thirty-five percent of U.S. forces in the Middle East consisted of National Guard and Reserve military forces. (2) These service members--sometimes referred to as "citizen soldiers"--maintain normal civilian lives and employment but are prepared to serve their country as needed. (3) Unfortunately, upon return from military service, many citizen soldiers suffer adverse retaliation, discrimination, or termination at the hands of their civilian employers. (4) With 90,000 troops slated to return from Afghanistan by 2014, reemployment rights for returning service members are an increasing concern. (5)

The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects uniformed service members returning to civilian employment. (6) For qualified service members, the act establishes a right to reemployment upon return from military service in the position the service member would have been in had he or she never left for service. (7) The employee's employment position--determined upon return by the "escalator principle"--may move up, down, or stay the same while the employee is on military leave. (8) A recent Eighth Circuit decision, Milhauser v. Minco Products, Inc., clarified that in certain circumstances, even termination qualifies as a reemployment position. (9)

In Milhauser, a maintenance technician took military leave from his employer to train for his anticipated deployment to Iraq. (10) Subsequently, the employer suffered significant financial difficulties, and the company ordered a reduction in force. (11) Based on the service member's mediocre employment record, he was one of four persons terminated from his department. (12) The Eighth Circuit held that the service member employee was not entitled to return to the company following his required military training because, according to the escalator principle, his position of reemployment was termination. (13)

This Note assesses Milhauser's impact on reemployment claims under USERRA. Part II begins with an analysis of the facts and holding of the case. Next, Part III synthesizes the background of USERRA, provides an overview of the statute, and introduces the escalator principle. Part IV outlines the court's rationale in deciding Milhauser. Finally, Part V discusses the impact of Milhauser on USERRA reemployment claims. This Note argues that: (1) the court's reliance on USERRA regulation [section] 1002.194 was misplaced because the court's interpretation presents a conflict between two sections of the statute and creates burden of proof issues; (2) the Milhauser holding should be narrowly interpreted; and (3) the case presents several unanswered questions that will spur subsequent litigation.

II. FACTS AND HOLDING

Douglas Milhauser brought the present action against his former employer, Minco Products, Inc. (Minco), claiming the company violated his rights under USERRA. (14) Milhauser worked as a maintenance technician for Minco from 2006 to 2009. (15) Throughout his employment with Minco, Milhauser also served as a member of the Navy Reserves and the Air Force Reserves. (16) Milhauser's membership in the armed services required him to take three separate military leaves of absence from Minco between 2007 and 2009. (17) The circumstances giving rise to litigation surrounded Milhauser's third leave of absence. (18)

Prior to his third military leave of absence, Milhauser's performance as a maintenance technician was "inconsistent and sometimes poor." (19) Several of Milhauser's colleagues expressed concerns about his attitude and the quality of his work. (20) On one occasion, Milhauser received a written reprimand from his supervisors. (21) Following the reprimand, Milhauser's supervisors reassigned several of his duties to other maintenance technicians, replacing them with more menial tasks. …