Last week, the Court of Appeals for the Eighth Circuit revived an employee's challenge that the employer failed to re-employ him when he returned from protected leave.  

The employee, a store manager for Dollar General, went on leave under the Uniformed Services Employment and Reemployment Rights Act (USERRA) for a deployment in Afghanistan in 2014. The USERRA provides protections to members of the military returning from service and requires re-employment in the same or similar position for which the employee is qualified if the employee meets certain requirements, including submitting an application for re-employment.

The employee was wounded in service and received approval to extend his leave through April 2016, while he recovered from his injuries. During this time the employee was in contact with Dollar General's third party leave administrator. He expressed his frustration to the third party administrator that Dollar General was not returning his messages inquiring about his return to work. A misunderstanding between him and the third party administrator caused the administrator to mistakenly tell Dollar General that he would not be returning to work at all, leading Dollar General to send him a termination notice in April 2016.

The employee continued leaving messages with Dollar General and trying to contact it about the situation and his intent to return. After receiving the termination notice, he applied online to a similar store manager position and in his application discussed his prior position and the communication issues he experienced while on leave. He was not hired for the position.

In ruling for the employee, the court found that the employee's attempts to communicate with his employer defeated its defense that he had "clearly and equivocally" resigned. Further, the court stated that a jury could find that his online application was a reasonable attempt to satisfy his obligation under USERRA to give notice of an intent for re-employment.

The court rejected the employer's defense that the employee should have submitted his online application through the third party leave administrator instead of directly to the company. In doing so, the court rejected the employer's attempt to deflect blame away from itself and onto the third party leave administrator, illuminating the takeaway on the importance of communication for employers.

Had the employer directly communicated with, or been responsive to the employee while on leave, the misunderstandings that resulted in the lawsuit may have been entirely avoided. The simple lesson from this case is that employers should directly communicate with employees on protected leave before terminating them. The use of a third party leave administrator did not provide any defense to the employer’s denial of the employee’s application for re-employment in this case.

Employers should consider the lessons of this case applicable to employees on all forms of leave, including USERRA, the Family Medical Leave Act, and Americans with Disabilities Act.  Direct communications and responsiveness to employees on any form of protected leave can go a long way in preventing misunderstandings, and more importantly, lawsuits.