USERRA Claim Allowed to Proceed When Veteran Applied to Position at Different Location of Prior Employer

By Heather Bredeson - Seaton Peters & Revnew, P.A.

September 27, 2018

In Scudder v. Dolgencorp, LLC, 900 F.3d 1000 (8th Cir. 2018), the United States Court of Appeals for the Eighth Circuit held that members of the military who apply for new jobs with their former employers upon returning from deployment are protected by federal law which requires companies to rehire veterans.  The Court ruled that the Uniformed Service Employment and Reemployment Rights Act (USERRA) requires employers to rehire any veteran who applies for “a position of employment,” with their prior employer.  The plaintiff, Scudder, was a sergeant in the Arkansas National Guard and was hired by Dolgencorp, d/b/a Dollar General in 2013.  He was deployed to Afghanistan in 2014, where he was injured, and then spend about fifteen months in recovery.  In 2016, Scudder contacted Dollar General, stating his former supervisors had not responded to his inquiries about returning from leave.  He asked Dollar General’s contracted leave administration company if he was required to “put in [his] two weeks,” which the administrator interpreted as a resignation.  In response, Scudder sent an email stating that he wanted to continue working for Dollar General.  He received no response.  He also applied online for a position managing a different Dollar General store in Arkansas, noting he had worked for Dollar General before he was deployed.  He was not hired.

Scudder sued Dollar General for violating USERRA by refusing to reinstate him upon returning from military leave.  Dollar General argued that Scudder’s application for the manager position was not a “demand for re-employment” under USERRA because he was not seeking to be reinstated to his old job.  The lower court dismissed the case, but the Eighth Circuit reversed.  The Eighth Circuit determined that USERRA requires only that military veterans apply for “a position of employment” with their former employers and notify them of their return from leave.  Scudder met that bar in his online application by noting his prior experience with Dollar General and the fact that he left for a deployment.

This case serves as a reminder for employers to maintain direct contact with employees on any form of leave. This will help avoid communication missteps and ensure a smooth transition back into the workplace.

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