Reemployment Under USERRA Sections 4312 & 4313: At Will Employment vs. Temporary Employment

As thousands of service members return to the U.S., severe economic conditions render acclimation to civilian life especially difficult. In 2010, as the combat mission in Iraq approached an end, the unemployment rate of Iraq and Afghanistan era veterans had reached 13.1 percent. The Uniform Services Employment and Reemployment Rights Act, 38 U.S.C. §§ 4301-4333 (1994) ( USERRA ), was enacted, in great part, to mitigate harms such as those caused by the aforementioned perfect storm. Among other things, USERRA protects service members by entitling them to reemployment after military service. More specifically, USERRA Sections 4312 & 4313 entitle returning service members to reemployment to the position which the member would have had if not for the military leave, or a like position to pre-leave positions. This article considers two issues: First, whether Section 4312 applicability is limited to the terms and conditions of the employer\u27s first reemployment offer, or if its applicability extends to subsequent modifications to such terms and conditions. Second, whether under Sections 4312 and 4313, a member whose pre-service employment status was that of employee at will, is entitled to reemployment to an employee at will position (with the corresponding expectation of indefinite employment duration) upon returning from service, or if such sections are satisfied by the reemployment of the service member for the temporary period of time. These very two issues are presented and to be decided in Hart v. Family Dental Group P.C. and Kenneth Epstein, a case currently pending with the U.S. Court of Appeals for the Second Circuit, in which the undersigned is legal counsel for the plaintiff. Accordingly, this article examines these two issues within the factual context of this case