LAW REVIEW 1075
Congress Clarifies the Application of USERRA to Successors in Interest
By Captain Samuel F. Wright, JAGC, USN
220.127.116.11—Application of USERRA to Successors in
On October 13, 2010, President Obama signed into law the Veterans’
Benefits Act of 2010 (VBA-2010), Public Law 111-275. This important new law makes several welcome
amendments to the Uniformed Services Employment and Reemployment Rights Act
(USERRA) and the Servicemembers Civil Relief Act (SCRA). We shall address each of these amendments in
the “Law Review” column.
Section 702 of VBA-2010 is
titled “Clarification of the Definition of ‘Successor in Interest.’” I have addressed the application of USERRA to
successors in interest in Law Reviews 79, 0634, 0723, 0738, and 0847. You can find more than 750 articles about
USERRA and other military-relevant laws at www.roa.org/law_review. You will also
find a detailed Subject Index and a search function, to facilitate finding
articles about very specific topics. In
the Subject Index, I invite the reader’s attention to Category 18.104.22.168, on the
application of USERRA to successors in interest.
If you are called to the
colors for many months, you may find that much has changed by the time you
return. The company that employed you
may have merged with or been acquired by another company. If you worked for a government contractor,
you may find that the contractor that employed you lost the contract to another
government contractor. You may find that
most of your former colleagues at the old contractor are now working for the
new contractor, doing essentially the same jobs that they had been doing before
you were called to the colors.
As I explained in Law Review
0766 and other articles, you must meet five eligibility criteria to have the
right to reemployment under USERRA. You
must have left a civilian position of employment for the purpose of performing
service in the uniformed services, and you must have given the employer prior
oral or written notice. Your cumulative
period or periods of uniformed service, relating to the employer relationship
for which you seek reemployment, must not have exceeded five years. (All involuntary service and some voluntary
service are excluded from the computation of the five-year limit. Please see Law Review 201.) You must have been released from the period
of service without having received a punitive (by court martial) or
other-than-honorable discharge, and you must have made a timely application for
If you meet these simple
requirements, the employer has the legal obligation to reemploy you in the
position of employment that you would have attained if you had been
continuously employed or another position for which you are qualified that is
of like seniority, status, and pay, even if that means displacing another
employee. If the new company is the
successor in interest to the company that you worked for before your service,
the successor company inherits the obligation to reemploy you.
Let us say that you worked
for Northwest Airlines from 1998 to 2007, when you left your job for voluntary
or involuntary military service. You
completed your active duty and applied for reemployment in 2011 and met the
USERRA eligibility criteria. While you
were on active duty, Northwest merged with Delta, and the combined airline is
called Delta. Delta is clearly the
successor in interest to Northwest and has inherited the obligation to reemploy
you. This application is not
controversial. Delta would almost
certainly not deny that it is the successor in interest to Northwest.
For a more controversial
application of the successor in interest principles, I invite your attention to
Coffman v. Chugach Support Services,
Inc., 411 F.3d 1231 (11th Circuit 2005). I discuss Coffman
in detail in Law Reviews 79, 0634, and 0847.
Charles S. Coffman, an Air
Force Reservist, worked for Del-Jen, Inc. (DJI), the company that had the Base
Operating Support (BOS) contract with the Air Force for Tyndall Air Force Base
in Florida. Coffman was
called to active duty for a year, and he gave proper notice to DJI, his
civilian employer. DJI hired a woman for
the job that Coffman had temporarily vacated and informed her that her position
was temporary and that when Coffman returned from active duty he would most
likely be returning to his pre-service job and displacing her.
While Coffman was on active
duty, the Air Force contract with DJI expired, and the service awarded the new
BOS contract to Chugach Support Services (CSS).
Of the 100 DJI employees on the Tyndall AFB BOS contract, CSS hired 98
of them. This included the woman that
DJI had hired to replace Coffman on a temporary basis, but it did not include
When Coffman returned from
active duty, he made a timely application for reemployment with CSS, and he met
the USERRA eligibility criteria. CSS
denied that it was the successor in interest to DJI and refused to reemploy
Coffman. Coffman sued CSS in the United
States District Court for the Northern District of Florida, which granted
summary judgment for CSS. Coffman
appealed to the United States Court of Appeals for the Eleventh Circuit (11th
Circuit), which affirmed the summary judgment.
The 11th Circuit is the federal appellate court that sits in Atlanta and hears appeals from federal district courts in Alabama, Florida,
The District Court and the 11th
Circuit held that there can be no finding of successor in interest in the
absence of a merger or transfer of assets.
These courts rejected the argument that a “functional successor” can be
a successor in interest for purposes of USERRA and other employment laws. The 6th Circuit (Kentucky, Michigan,
Ohio, and Tennessee) has accepted the “functional successor” theory in a
similar context. See Cobb v. Contract Transport, Inc., 452 F.3d 543 (6th
Cir. 2006). See also Murphree v. Communications Technologies, Inc., 2006 WL
2006). Despite the apparent conflict
among the circuits, this issue has not yet made its way to the Supreme Court
Section 4303 of USERRA (38
U.S.C. 4303) defines 16 terms used in this statute, including the term
“employer.” Section 4303(4) defines the
term “employer.” The statutory
definition includes “any successor in interest to a person, institution,
organization, or other entity referred to in this subparagraph.” 38 U.S.C. 4303(4)(A)(iv). Until now, USERRA has not defined the term
“successor in interest.”
Section 702 of VBA-2010
amends section 4303(4) of USERRA by adding a new subsection (D), as
follows: “(D)(i) Whether the term
‘successor in interest’ applies with respect to an entity described in
subparagraph (A) for purposes of clause (iv) of such subparagraph shall be
determined on a case-by-case basis using a multi-factor test that considers the
following factors: (I) Substantial
continuity of business operations. (II)
Use of the same or similar facilities.
(III) Continuity of work force.
(IV) Similarity of jobs and working conditions. (V) Similarity of supervisory personnel. (VI) Similarity of machinery, equipment, and
production methods. (VII) Similarity of
products or services.
(ii) The entity’s lack of
notice or awareness of a potential or pending claim under this chapter at the
time of a merger, acquisition, or other
form of succession shall not be considered when applying the multi-factor
test under clause (i).” 38 U.S.C.
4303(4)(D) (emphasis supplied).
There does not appear to be any legislative
history (committee reports, floor debates, etc.) on section 702 of VBA-2010,
but the inclusion of the “or other form of succession” means that there can be
a finding of successor in interest without a merger or acquisition. It is clear that the intent of section 702
was to overrule Coffman. This clarification is important, because
there have been other cases like Mr. Coffman’s case. We will keep the readers informed of
developments on this important issue.
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