Military Reemployment RightsEmployers won a victory at the expense of a surgeon deployed to Iraq for military service in a lawsuit concerning re-employment rights under the Uniformed Services Employment and Reemployment Rights Act (USERRA). Slusher v. Shelbyville Hosp. Corp., (10/26/15).

In January 2011, Richard Slusher, an orthopedic surgeon, signed a one-year contract with Shelbyville Hospital Corporation, d/b/a Heritage Medical Center. Under the contract, which began on February 28, 2011, Slusher was to be employed as Heritage’s orthopedic surgeon. The agreement did not provide for renewal or extension.

Approximately four months into the contract, Slusher learned he would be deployed to Iraq on active military duty. This deployment was to last for four months starting in June 2011. During Slusher’s deployment to Iraq, Heritage informed him that his employment with Heritage would end on October 26, 2011, because it had hired another physician as his replacement.

The USERRA Lawsuit

Slusher filed his claim for discrimination under the USERRA for violations of his reemployment rights under the Act, and for breach of contract. His claim, however, was not successful at the district court level or later at the Court of Appeals.

Specifically, the U.S. Court of Appeals panel for the Sixth Circuit (the federal circuit covering Michigan and surrounding states) agreed with the district court’s decision to dismiss the claim in favor of Heritage. The Court of Appeals panel ruled that Slusher had no expectation of employment for a significant period that could trigger his re-employment protection under USERRA when he returned from deployment.

In this regard, under 38 U.S.C. §4312(a), “any person whose absence from a position of employment is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits” of the Act, so long as he gave notice to his employer in advance of his deployment, was absent for five years or less, and seeks reemployment. Id. But there is no statutory right to reemployment if “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.” 38 U.S.C. §4312(d)(1)(C).

No USERRA Violation

Applying this statute, the Court readily determined Slusher’s employment was not indefinite.

That Slusher’s contract was for one year and did not provide for renewal or extension plainly means that his employment was for a ‘nonrecurrent period’ and that he could not have had a ‘reasonable expectation’ that his employment would ‘continue indefinitely’ … Practically speaking, he had a temporary job ending … Slusher could not have reasonably expected his employment with Heritage to continue for a significant period.

As to the question of whether the employment from which Slusher left to serve in the uniformed services was for a “brief” period, the Court noted that the Act does not provide a definition of “brief.” Even so, the district court concluded that a one-year employment term was brief.

The Court of Appeals, however, was not ready to endorse this bright line rule of one year. Instead, it agreed that under the facts and circumstances one year was “brief,” but it expressly declined to decide whether a one-year employment term is necessarily brief in all cases.

Personally, I think the dissenting judge, Helene White, offered a better-reasoned analysis, which was supported by the statute and applicable case law. Her entire opinion is worth reading, but in sum, she noted:

In concluding that Slusher had no reasonable expectation of employment for a significant period, the majority explains, without citation to authority, that ‘a significant period is one that would provide an employee with some semblance of security or offer the ability to engage in long-term planning.’ Even assuming this definition of ‘significant period’ is correct, if Slusher had a reasonable expectation of serving out the remainder of his contract, that would undoubtedly provide him with a semblance of security and offer him the ability to engage in long-term planning … More importantly, no matter the salary, knowing where one’s next several months of income will be coming from after returning home from serving one’s country would certainly provide at least a semblance of security to a uniformed service member.

In light of the sacrifices military personnel and their families make for you and me and the rest of the country, I agree with Judge White – in a close factual or legal call, the tie should go to the soldier, not the corporate employer.

For more information about complying with military re-employment rights under the Uniformed Services Employment and Reemployment Rights Act or other federal and Michigan employment laws, contact attorney Jason Shinn.