Employment -Second Circuit Rules That An Employer Did Not Violate USERRA When It Fired A Returning Serviceman

In Hart v. Family Dental Group PC, No. 10-1008-cv (Second Circuit 2011), the plaintiff, Dr. Evan Hart (“Hart”), had brought suit against the defendants, Family Dental Group, PC and its president, Kenneth Epstein (together, “FDG”). Hart’s claim was that FDG, his employer, had fired him in violation of § 4312(a) of the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). The district court ruled in favor of FDG, and Hart appealed. The Second Circuit Court of Appeals (the “Court”) affirmed the district court’s decision.

FDG had hired Hart in 2001 to work as a dentist. Prior to joining the practice, Hart enlisted in the United States Army Reserves. Hart’s employment with FDG was governed by a signed employment agreement. This document provided that Hart could be terminated without cause so long as he was given 30-days notice. In July 2004, Hart was called to duty with the Army Reserves, and was stationed in Iraq from September 2004 until December 2004. In December 2004, Hart contacted FDG to inform it of his plan to return to FDG upon the completion of his Army service. He began working at FDG again on January 17, 2005. Hart was afforded the same title, salary, benefits, and other conditions of employment that he received before he left for Iraq. On January 20, however, FDG gave Hart a letter stating that his employment would be terminated in 60 days, shortened to 30 days in accordance with Hart’s employment agreement. Hart sought Department of Labor intervention, and as a result his employment with FDG was extended until July 20, 2005 (§ 4316(c)(2) of USERRA required FDG to employ Hart for 180 days following his return from active duty, which it did with this extension). Still not satisfied, Hart filed this suit.

The question for the Court is whether the FDG January 20 letter providing Hart with 60-days notice (later changed to 30-days and thereafter again changed to 180-days), and Hart’s subsequent termination in accordance with that letter, violated § 4312(a) of USERRA. The Court ruled that there was no violation of this provision. § 4312 of USERRA creates an entitlement to reemployment following military service. However, § 4312 entitles a service person only to immediate reemployment, and does not prevent the employer from terminating him the next day or even later the same day. Hart was re-employed on his return from his leave for military service, with the same seniority and other rights and benefits (e.g., the same title, salary, benefits, and other conditions of employment) that he had before he left. That is all § 4312 requires. §§ 4311 and 4316(c)(2) of USERRA provide additional protections for returning serviceman. However, Hart did not appeal any claims arising under § 4311 and § 4316, so the Court would not express an opinion on whether those provisions were violated here.