(a) Even if the employee is otherwise eligible for reemployment benefits, the employer is not required to reemploy him or her if the employer establishes that its circumstances have so changed as to make reemployment impossible or unreasonable. For example, an employer may be excused from reemploying the employee where there has been an intervening reduction in force that would have included that employee. The employer may not, however, refuse to reemploy the employee on the basis that another employee was hired to fill the reemployment position during the employee's absence, even if reemployment might require the termination of that replacement employee;
(b) Even if the employee is otherwise eligible for reemployment benefits, the employer is not required to reemploy him or her if it establishes that assisting the employee in becoming qualified for reemployment would impose an undue hardship, as defined in § 1002.5(n) and discussed in § 1002.198, on the employer; or,
(c) Even if the employee is otherwise eligible for reemployment benefits, the employer is not required to reemploy him or her if it establishes that the employment position vacated by the employee in order to perform service in the uniformed services was for a brief, nonrecurrent period and there was no reasonable expectation that the employment would continue indefinitely or for a significant period.
(d) The employer defenses included in this section are affirmative ones, and the employer carries the burden to prove by a preponderance of the evidence that any one or more of these defenses is applicable.
Notes of Decisions
Joel Bradberry v. Jefferson Cnty., Texas, 732 F.3d 540 (5th Cir. 2013).
“20 C.F.R. § 1002.139 . The regulations, on both discrimination and on reemployment rights, make a reasonable interpretation of the evidentiary burdens of those claims and their respective defenses.”
Milhauser v. Minco Prods., Inc., 855 F. Supp. 2d 885 (D. Minnesota 2012).
· cites it 4× “” 20 C. F.R. § 1002.139. 5 The employer has the burden of proving impossibility or unreasonableness.”
United States v. Nevada, 817 F. Supp. 2d 1230 (D. Nev. 2011).
· cites it 2× “The exemption may apply, for example, “where there has been an intervening reduction in force that would have included the employee,” 20 C.F.R. § 1002.139 (a), or where the employee has engaged in conduct while on military leave “that would be cause for dismissal at any other…”
Mace v. Willis, 259 F. Supp. 3d 1007 (D.S.D. 2017).
“2d at 730 (quoting 20 C.F.R. § 1002.139 (a)). “A returning veteran will not be denied his rightful position because the employer will be forced to displace another employee.”
Davis v. Crothall Servs. Grp., Inc., 961 F. Supp. 2d 716 (W.D. Pa. 2013).
· cites it 2× “The employer may not, however, refuse to reemploy the employee on the basis that another employee was hired to fill the reemployment position during the employee’s absence, even if reemployment might require the termination of that replacement employee 20 C.F.R. § 1002.139 (a).…”
Munoz v. InGenesis STGI Partners, LLC, 182 F. Supp. 3d 1097 (S.D. Cal. 2016).
· cites it 2× “” 20 C.F.R. § 1002.139 (a). However, an employer may not “refuse to reemploy the employee on the basis that another employee was hired to fill the reemployment position during the employee’s absence, even if reemployment might require the termination of that replacement employee.”
Jonathan Dorris v. TXD Servs., 753 F.3d 740 (8th Cir. 2014).
“§ 4312 (d)(1)(A); see 20 C.F.R. § 1002.139 (a) (citing “an intervening reduction in force” as an example of changed circumstances).”
Collins v. Staghorn Petroleum II, LLC (N.D. Okla. 2025).
· cites it 2× “” 20 C.F.R. § 1002.139 (a) (2025). Consequently, if an employee is laid off before or during his activity in the uniformed services and his employer “would not have recalled him” during that term of service, “the employee is not entitled to reemployment following the period of…”
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