Does USERRA require reemployment of independent contractors?
Issue:

Charlene worked in sales for your company for almost three years before leaving to serve as a Marine. During that time, your company treated her as an independent contractor; it did not make Social Security contributions on her behalf, nor did it cover her under its group insurance plans. The relationship was one of mutual benefit, with neither party subservient to the other.

After fulfilling her military obligations, Charlene received an honorable discharge and requested reemployment with your company. Are you obligated to reemploy her?
Answer:    

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) governs an employee’s right to reemployment after returning from military service. To determine whether a person is an employee or an independent contractor, USERRA follows the same manner in which a determination is reached under the Fair Labor Standards Act, the 20-factor test.

The test examines a variety of criteria, including:

  • whether a person is required to comply with instructions about when, where and how to work;
  • whether a person must perform services in an employer-prescribed sequence; and
  • whether payment for work is by the hour, week or month or is by the job in a lump sum or on a commission basis.

If, after analysis of the factors laid out by the test, it is determined that the relationship Charlene had with your company was that of an independent contractor, she would not be entitled to reemployment under USERRA.

Source:  CCH When Duty Calls; Military Leave and Veterans’ Rights.
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