The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides that employees returning to work from a military leave must be reemployed in the “position of employment in which they would have been employed” had their employment not been interrupted by military service (the so-called “escalator principle”).  The Eighth Circuit recently decided a case applying this law to an employee who was terminated upon his return to work.  In Milhauser v. Minco Products, Inc., the plaintiff worked as a maintenance technician.  He was selected for termination as part of a reduction in force, as his supervisor considered his performance and skill set lacking as compared to other potential candidates for termination.  Milhauser sued under USERRA, claiming his employer violated the above-referenced reemployment requirements.  The employer argued Milhauser would have been terminated even if he had not left for military service.  Thus, it claimed, it complied with the escalator principle, even in terminating Milhauser’s employment.

Seems like a risky argument, no?  Well the court bought it, and the Eighth Circuit affirmed.  The employer presented enough evidence to prove Milhauser would have been terminated whether or not he took a military leave.  The court noted that USERRA regulations state that “depending on the circumstances, the escalator principle may cause an employee to be reemployed in a higher or lower position, laid off, or even terminated.”

While this case is good news in that it provides employers with flexibility in addressing workplace needs, please don’t take this case to mean you can do whatever you like with respect to the employment of returning military members.  Tread carefully and check with counsel.