Do you have an employee on long-term leave with a right to reinstatement?  Is your business being acquired or bought out?  Make sure you keep the employee in mind!

In Dorris v. TXD Services, LP, the plaintiff was deployed to Iraq for active duty service.  Later, the employer sold its assets, and as part of the sale documents, provided a list of all “personnel currently employed” to the purchaser.  The list did NOT include employees then on leave to serve a military commitment.  More pointedly, the employer did not disclose the plaintiff was as “currently employed.”  The purchaser allegedly hired all the current employees and they continued to work for the successor company.

When he returned from military service, plaintiff filed suit under the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), for discrimination and a failure to reinstate him following his military service.  In permitting Plaintiff’s reinstatement claim to proceed to trial, the Eighth Circuit concluded that being included in the list of current employees would have been a benefit under USERRA; it provided the opportunity for a “seamless transfer of employment” to the successor employer.

Bottom line: Be sure to disclose your employees on long-term leave to possible successors.  Dorris v. TXD Services, LP, No. 12-3096 (8th Cir., Feb. 27, 2014).