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Fourth Circuit Says USERRA Requires Reinstatement to Equivalent but Not Identical Position

    Client Alerts
  • July 01, 2022

The Uniformed Services Employment and Reemployment Rights Act (USERRA) contains some of the most expansive employee rights provisions under federal law, requiring employers not only to reinstate service members to their former positions but to place them in jobs they would have achieved had they not left for military service. Last month, the Fourth Circuit Court of Appeals (which includes North Carolina, South Carolina, and Virginia) held that USERRA allows employers to reinstate employees to similar jobs in different locations, as long as they have equivalent pay, benefits, and status.

In Harwood v. American Airlines, Inc., the plaintiff was an airline pilot who took military leave, followed by a medical leave caused by a heart condition. When he returned from medical leave, the airline offered him reinstatement to a flight operations position in another city. He sued, contending that the position offered was not equivalent due to his removal as a line pilot, and the requirement that he relocate.

The Fourth Circuit rejected both arguments, noting that the two jobs had the same pay, benefits, and seniority rights he would have been eligible for had he never left for military leave. The court concluded that the two jobs had equal status within the organization. Department of Labor regulations issued under USERRA state that the escalator position may be in a different location from the pre-leave one.

Employers that do not hold open positions for employees on military leave should carefully evaluate and document an equivalent job offered to a returning service member. That equivalent job must place the employee in the same position that he or she would have enjoyed had they never left for leave in the first place.