Labor & Employment Law Daily Wrap Up, USERRA, VETERANS—10th Cir.: State agency retained requisite level of control over Guard Member to be a USERRA employer, (Jan 2, 2026)

By Thomas K. Lauletta, J.D.

Sufficient evidence precluded summary judgment on the issue of whether the State of Kansas was the Guard member’s employer under USERRA.

The Tenth Circuit reversed a district court decision holding that an Army National Guard Member serving as a disease intervention specialist in the Kansas Department of Health and Environment (KDHE) was not an employee of the State of Kansas for purposes of USERRA. The appeals court found the district court’s interpretation of USERRA’s definition of “employer” was overly narrow and it failed to apply the correct summary judgment standard in reviewing the evidence of record (USA v. State of Kansas Department of Health and Environment, No 24-3041 (10th Cir. Dec. 30, 2025)).

During the time at issue, the Army National Guard Member served as the local disease intervention specialist for Finney County, Kansas. On or about April 1, 2010, Finney County supervisors of the Guard Member discussed his alleged performance deficiencies, stating that an Aid-to-Local grant from the federal government would be jeopardized by his unsatisfactory performance.

On July 1, 2010, the KDHE decided not to renew Finney County’s Aid-to-Local grant. Thereafter, Finney County terminated its local disease intervention specialist position, and the Guard Member became unemployed.

Lower court proceedings. The federal government brought suit against the State of Kansas, claiming the KDHE had violated the USERRA. The district court ruled that Kansas could not be the Guard Member’s employer under USERRA because the KDHE did not have any authority to hire, fire, or supervise the Guard Member, or determine her salary. The government appealed.

Definition of “employer” under USERRA. The appeals court stated that the text of USERRA provides that an employer is: (1) whoever pays an employee’s wages; or (2) whoever controls the employee’s employment opportunities. The court noted that for purposes of USERRA, “employment opportunities,” refers both to opportunities for obtaining employment and opportunities within the scope of one’s employment.

Kansas argued that no employment relationship could exist between Kansas and the Guard Member because Finney County was the recipient of the Aid-to-Local grant, not the Guard Member. The appeals court rejected this “categorial distinction,” stating that two questions were left unanswered: whether Kansas, through the KDHE, (1) paid the Guard Member’s salary, or (2) exercised some control over the employment opportunities of the Guard Member.

Kansas’s motion for summary judgment. The court ruled that the district court’s summary judgment ruling was not consistent with the requirement of Federal Rule 56 to view the evidence in the light most favorable to the Guard Member, the non-moving party, and to recognize a genuine dispute of material fact.

The government challenged the district court ruling based on its conclusion that the KDHE had (1) no authority to hire or fire the Guard Member; and (2) had no authority to supervise her. The government presented evidence that KDHE supervisors participated in the hiring of local disease intervention specialists, such as the Guard Member. Regarding the question of supervision, the appeals court stated that the KDHE established the training requirements for the local disease intervention specialist position.

Court action. The court, ruling that there was sufficient evidence to preclude summary judgment on the issue of whether Kansas was the Guard Member’s USERRA employer, reversed the district court’s order granting summary judgment. But because Kansas raised other arguments in its summary judgment motion which the district court had not addressed, the court remanded the case to the district court to address questions raised in its decision.

The case is No. 24-3041.

Judge: Murphy, M.

Attorneys: Janea Lamar, U.S. Department of Justice, for the United States. David R. Cooper (Fisher Patterson Sayler & Smith) for State of Kansas Department of Health and Environment.

Companies: State of Kansas Department of Health and Environment

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