Sending a COBRA election notice shortly after an employee began military duty was not evidence that an employer fired the employee due to his military status in violation of the Uniformed Services Employment and Reemployment Rights Act, a federal district court in Arkansas held. In generally rejecting the USERRA claims, the court indicated, among other things, that a notice that the employer did not generate did not give rise to a viable USERRA claim, and the notice referred to a “termination of employment” that could have been either voluntary or involuntary. The case, Dorris v. TXD Services, LP, 2012 WL 3149106 (E.D. Ark., Aug. 1, 2012), also raised issues on the interplay of the separate continuation coverage rules under USERRA and COBRA.
USERRA’s reemployment provisions generally state that an eligible person “shall be promptly reemployed” in a position that he or she would have been employed in had the employment not been interrupted by military service. However, there is an exception: An employer is not required to reemploy a person if “the employer’s circumstances have so changed as to make such reemployment impossible or unreasonable.” (38 U.S.C. §4312)
USERRA’s anti-discrimination provisions generally prohibit discriminatory actions where the employee’s military status is a “motivating factor” in certain adverse employment decisions (such as the denial of initial employment or reemployment).” If an individual proves that the employer’s action motivated by his or her military status, the employer has the burden to prove that the action would have been taken regardless of the USERRA-protected status or activity. (38 U.S.C. §4311 and 20 C.F.R. §1002.23(b))
For the full story, go here.