Employer Not Obligated to Rehire Poor-Performing Worker Under USERRA: Court

By Judy Greenwald

Dec. 5, 2012

An employer is not obligated under the Uniformed Services Employment and Reemployment Rights Act to rehire a returning veteran with a poor work performance who was terminated as part of a reduction in force, said an appellate court Dec. 5.

According to the ruling by the 8th U.S. Circuit Court of Appeals in St. Louis in Douglas Milhauser v. Minco Products Inc., Milhauser, a maintenance technician whose work performance was considered to be “inconsistent and sometimes poor,” was included among those terminated as part of a reduction in force at his Fridley, Minnesota-based firm. As a result, he was dismissed when he reported for work after his military service had concluded in June 2009.

Milhauser sued, charging the company with discrimination on the basis of military service and with failure to provide re-employment as required by USERRA. A jury ruled in Minco’s favor on both counts, and Milhauser appealed on the USERRA issue.

The appellate court said under USERRA, employees returning from military leave must be re-employed in the “position of employment in which they would have been employed” had their continuous employment not been interrupted by military service, which is known as the escalator principle.

“Milhauser asserts that termination cannot be a ‘position of employment’ under USERRA,” said the appellate court.

But a three-judge panel disagreed: “The jury’s finding that Milhauser’ s position of employment would have been termination had he not left for military service is entirely consistent with USERRA’s text and its implementing regulations,” said the court, in affirming the lower court’s judgment.”

“The Secretary of Labor’s regulations on USERRA confirm that the escalator principle may properly be applied to result in an employee’s termination … We accord considerable deference to the Secretary’s interpretation” because she is charged with implementing USERRA’s provisions, said the court, which also stated other courts’ rulings agree.

Experts have said complying with the broadly worded USERRA can be a challenge for employers.

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management. Comment below or email

Stay informed and connected. Get human resources news and HR features via Workforce Management’s Twitter feed or RSS feeds for mobile devices and news readers.

Judy Greenwald writes for Business Insurance, a sister publication of Workforce Management.

What’s New at

blog workforce

Come see what we’re building in the world of predictive employee scheduling, superior labor insights and next-gen employee apps. We’re on a mission to automate workforce management for hourly employees and bring productivity, optimization and engagement to the frontline.

Book a call
See the software

Related Articles

workforce blog


Minimum Wage by State in 2023 – All You Need to Know

Summary Twenty-three states and D.C. raised their minimum wage rates in 2023, effective January 1.  Thr...

federal law, minimum wage, pay rates, state law, wage law compliance

workforce blog


New Labor Laws Taking Effect in 2023

The new year is fast approaching, and with its arrival comes a host of new labor laws that will impact ...

labor laws, minimum wage, wage and hour law

workforce blog


Wage and Hour Laws in 2022: What Employers Need to Know

Whether a mom-and-pop shop with a handful of employees or a large corporation staffing thousands, compl...

compliance, wage and hour law