The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides employee members of the military services the right to reinstatement in the same position they left when they went on active duty. Problems can arise for employers, however, when changes in the workplace affect a servicemember’s job. A recent decision by the U.S. 8th Circuit Court of Appeals (which covers Arkansas employers) provides guidance on employees’ obligations and servicemember employees’ rights.

Facts

Union Pacific Railroad employed Rodolfo Quiles as general manager of safety analysis and paid him as a “D-band” Employee. With “A-band” being the lowest pay, his compensation was just below the railroad’s “E-band” executive-compensation level.

As general manager, Quiles reported directly to Union Pacific’s assistant vice president of safety Rodney Doerr, an executive. At the same time, he served in the U.S. Marine Corps Reserve. He left his job at the railroad for voluntary deployment with the corps in May 2015.

During Quiles’ deployment, Union Pacific underwent a reduction in force (RIF), which eliminated all general manager titles and reclassified many of them as directors. The railroad chose Greg Workman to lead the safety department. He had a previous working relationship with Edward Adelman, whom he hired to join the department. Adelman was hired to serve as the general director of safety analysis, and he became the person who reported directly to Doerr, who remained an E-band employee.

Upon Quiles’ return from deployment, his new assignment was as a director of safety analysis, but his compensation remained at the D-band level. He retained the same job benefits, worked on the same projects, and retained managerial duties over a direct-report employee.

Nevertheless, Quiles viewed his new role as a demotion. He claimed his director position had “less responsibility, visibility, opportunity and status” than did his previous general manager job. As part of the reorganization, Union Pacific also adjusted the job requirements for the general director position to require five years of field experience, which he lacked.

As director, Quiles no longer reported to someone on the E-band level. Instead, he reported to Adelman, a fellow D-band employee. Before the deployment, he was peers with other D-band employees. Upon his return, however, he was peers with C-band workers. He previously had supervisory authority over certain employees who, upon his return, became his peers.

Quiles attempted to resolve the dispute through several meetings with Doerr and Union Pacific’s HR department, but his job title didn’t change. He became insubordinate, and the railroad terminated him in March 2016. He then sued.

USERRA Sets Standard

The 8th Circuit noted USERRA establishes the rules for the reemployment of employees upon their return from military service. They are entitled to return to a job based on the “escalator position” principle, i.e, placing them in a position reflecting what their employment status would have been if they had never left for military service.

Under the escalator-position principle, you must reemploy a returning employee in a position reflecting (with reasonable certainty) the pay, benefits, seniority, and other job prerequisites the individual would have attained but for the period of service. The analysis requires you to examine the person’s career trajectory “as if his or her employment ‘had not been interrupted by’ military service.” Depending on the circumstances, the employee could be reemployed in a higher or lower position, laid off, or even terminated.

The 8th Circuit observed an employer isn’t required to reemploy a service member if:

• “The employer’s circumstances have so changed as to make such reemployment impossible or unreasonable”;
• “Such employment would impose an undue hardship on the employer”; or
• The servicemember’s previous employment was “for a brief, nonrecurrent period, and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.”

Notably, if a servicemember is no longer qualified for his escalator position or can’t become qualified for it with reasonable efforts by the employer, then he is still entitled to be reemployed in a job for which he is qualified that is the nearest approximation to his escalator position, with full seniority. The 8th Circuit emphasized USERRA “is construed broadly and in favor of its military beneficiaries.”

Applying Standard Results in Decision for Employer

The 8th Circuit then applied the standard to Quiles’ circumstances and, even with USERRA’s bias favoring servicemembers, determined Union Pacific hadn’t violated his reemployment rights under the Act. The court found the record didn’t support the conclusion that the railroad failed to place him in the position he otherwise would have held if he hadn’t been deployed:

• Union Pacific underwent a RIF while Quiles was deployed;
• During the subsequent reorganization, his previous position as general manager was eliminated; and
• The new general director position he coveted required at least five years of field experience, which he admits he didn’t have.

As a result, the 8th Circuit found Quiles had been returned to his proper escalator position and ruled in Union Pacific’s favor.

Bottom Line

Quiles’ case is a good primer about the rights of employees returning from military service. It’s important for you to make a careful analysis in determining what position to offer a servicemember upon his return from service.

A word to the wise. While the 8th Circuit sided with Union Pacific, I would be very concerned about the timing of the change in qualifications to require five years of field service. Quiles was gone for only 90 days, but a lot happened:

• Workman was brought in as the head of safety;
• The job qualifications were changed to Quiles’ detriment; and
• Adelman was then hired based on the new qualifications.

Many plaintiffs’ attorneys would characterize the convenience of the events as suspicious and argue the qualifications were changed to eliminate Quiles and allow Adelman’s employment at his expense. The issue wasn’t raised here, but the timing should make you uncomfortable.

Steve Jones is an attorney with Jack Nelson Jones, P.A., in Little Rock, Arkansas. You can reach him at [email protected].

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