The Uniformed Services Employment and Reemployment Rights Act (USERRA) requires an employer to return a military veteran-employee to the "position of employment" he or she would have been in had the employee not left to serve. Is this duty satisfied when, upon a veteran's return and request for reinstatement, the employer fires him? The Eighth Circuit Court of Appeals recently faced this question in Milhauser v. Minco Prods., Inc., and ruled that termination from employment is a valid "position of employment" under USERRA, when the employer proves that the employee would have been terminated from employment even if military service had not interrupted his employment.
The employer in Milhauser presented evidence at trial of the veteran-employee's past performance problems and the employer's own economic circumstances. Such evidence would be critically important in a case like this, as the employer was required to prove that it would have selected the employee for layoff if he had not been on military service.
Milhauser v. Minco Prods., Inc., No. 12-1756 (8th Cir. Dec. 5, 2012).