USERRA Requires Employer to Pay Higher Bonus to Employee Upon Return from Military Service

An employee who missed work due to service in the United States Air Force was entitled to a higher bonus upon his return from service than the company gave him.  In Huhmann v. Federal Express Corporation, the United States Court of Appeals affirmed a district court judgment that the plaintiff, Dale Huhmann, should have been paid a bonus of $17,700 instead of the $7,400 he received.  The higher payment would comply with the Uniformed Services Employment and Reemployment Rights Act (USERRA).
 
USERRA ensures that employees who depart a civilian job for military service are not denied employment benefits due to that service.  Huhmann’s lawsuit claimed he was entitled to the higher bonus upon his return from Air Force service because (a) he had been selected to train for a higher paying position just prior to the beginning of his military service; and (b) he would have received the higher bonus if he had not left for military duty.  The district court, applying the ‘escalator principle’ and the ‘reasonable certainty’ test to determine the position to which a returning servicemember is entitled, agreed.  The ‘escalator principle’ requires employers to return an employee to the position s/he would have occupied if their employment had not been interrupted by military service.  The ‘reasonable certainty’ test assists the determination of what position a returning servicemember is entitled to by “inquiring into the position a returning servicemember would have been ‘reasonably certain’ to have attained absent the military service.”
 
Upon review, the Ninth Circuit concluded that the district court’s decision was not improper.  The record contained evidence showing that but for Huhmann’s military service, he would have completed the training requirements for the higher paying position in time to qualify for the higher bonus.  FedEx’s argument that the district court’s use of the ‘reasonable certainty’ test was improper was found unavailing where the district court employed the test as a tool for determining that Huhmann’s military service was a substantial or motivating factor in the adverse employment action he alleged to have suffered.  Likewise, the court dismissed the company’s argument that the district court improperly concluded that there was support in the record to substantiate finding that Huhmann would have been reasonably certain to have attained the higher paying position absent his military service.  As such, the Ninth Circuit affirmed the district court’s holding that Huhmann was entitled to the $17,700 bonus and had improperly received the smaller bonus of $7,400.