Can you believe this is legal? Military Guard and Reserve employees may be terminated during deployments

As the country is busy debating veteran unemployment, disability arrears and reintegration issues, let us not ignore the military reservists and National Guards currently deployed. with a full time job were waiting for them at the house – well, at least he was there when they left.

With a shrinking defense budget and an economy still uncertain, returning civilian-soldiers may find a treat waiting for them due to current downsizing and cost-cutting initiatives by companies.

Sadly, it’s legal.

One might think that they are protected by the Uniformed Services Employment and Reemployment Rights Act (USERRA) of 1994 because according to Wikipedia:

USERRA clarifies and strengthens the Veterans’ Right to re-employment status (VRR) by protecting civil labor rights and benefits for veterans, members of the reserve elements and even individuals activated by the President of the United States to provide a federal response to national emergencies. USERRA is also making major improvements in protecting the rights and benefits of service members by clarifying the law, improving enforcement mechanisms, and adding federal government employees to employees already eligible to receive US Department of Labor assistance in handling complaints of non-compliance.

However, according to a recent December 2012 decision of the United States Court of Appeals for the Eighth Circuit in Milhauser v. Minco Prods. Inc., n ° 12-1756 (8th Cir. 5 Dec. 2012) – link here, returning reservists or guards are not necessarily entitled to their employment according to USERRA because if a veteran had been laid off even though he had never been deployed, the layoff is fully justifiable and legal. They call it the “escalator principle”.

With companies looking to downsize to improve their bottom line, I predict this will be a very unfortunate loophole that companies will take advantage of. I know many companies, like Intel, promote that they honor their commitment to the employees of the Guard and the Reserve. It should continue. However, I also know of other companies that are looking for reasons not to hire veterans because of their part-time military obligations. I suspect some companies find soldiers / part-time employees a liability due to the cost of maintaining entitlements such as payroll taxes, health benefits, and pension contributions (just Google, “USERRA Lawsuit”). It is wrong, but it is a reality.

This case may have given them the ammunition not only to avoid hiring ex-combatants, but also the ability to fire current soldiers / civilians.

So the question becomes: is USERRA doing us harm or helping us?