Dive Brief:

• The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects the absences of employees out for military service — even those who are not guaranteed working hours, the 8th U.S. Circuit Court of Appeals has ruled (Mace v. Corey Willis, Kickbox Dakota LLC, No. 17-2130 (8th Cir., July 26, 2018)).
• Kieshia Mace, a member of South Dakota’s National Guard, worked as a fitness trainer at Kickbox Dakota when she was called for three weeks of mandatory military training. Although she was not guaranteed shifts, she averaged 13.6 hours a week. Work was assigned through a scheduling app and while Mace was away, the employer deleted her from the app. When she returned and asked why she couldn't access the app, the employer informed her that it had replaced her. Court documents said that although the employer later offered to put Mace back on the schedule, she decided to find other work instead.
• She then sued and a district court found that the gym had violated USERRA by failing to promptly reemploy her and that the violation was willful. The appeals court agreed, rejecting the owner's argument that he did put Mace back in the same position she left when she departed for training: an employee whom he had complete discretion to assign no shifts at all. Upholding the lower court's ruling, the 8th Circuit pointed out that USERRA’s implementing regulations make it clear that the law applies to part-time, temporary, probationary and seasonal employees.

Dive Insight:

USERRA claims may not be as numerous as other allegations, but employers still need to understand their responsibilities — from notices to reinstatement. The law protects "any person whose absence from a position of employment is necessitated by reason of service in the uniformed services." It generally entitles service members to re-employment in the position of employment in which they would have been employed if their continuous employment had not been interrupted by military service.

There are limitations, however. For example, an exception is made if the job is for a "brief, nonrecurrent period and there is no reasonable expectation that the employment would have continued indefinitely or for a significant period," the Mace court said, noting that the gym owner had failed to invoke that and other exceptions.

The law must be broadly construed in favor of its military beneficiaries, the Mace court noted in its opinion, and in this case, the willful nature of the violation was particularly notable. The court said there was no dispute that Mace timely notified the gym’s owner that she was a member of the National Guard and that her departure was for mandatory military training.