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I am a 43 year old pediatrician with a large HMO. There are

over 1,000 doctors in a...
I am a 43 year old pediatrician with a large HMO. There are over 1,000 doctors in a partnership that contract withe the HMO for services. Because I am a partner in the partnership they tell me that I have no USERRA protection if I join the Military and want to return. Aren't I both an employee and a partner and doesn't USERRA apply to protect me?
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5/15/2013
Marsha411JD
Marsha411JD, Lawyer
Category: Military Law
Satisfied Customers: 20,423
Experience: Licensed attorney and former Navy JAG serving ashore, afloat and at the OJAG
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Hello,

Thank you for the information and your question. Unfortunately, if you are an equity partner, you are the employer in a legal sense. So, even though you are, for tax purposes an "employee" of the firm, the legal theory that the courts would use to make their determination is the same as that used when denying partners and business owners unemployment benefits, even though they are also employees.

I am guessing that you have read the code and the definition of "employee" and "employer" but if you haven't, you can see it here: http://www.dol.gov/vets/usc/vpl/usc38.htm#4303

You might also want to read a couple of items written by attorneys for the Reserve Officer Association that confirm the conclusion that partners (as long as they have equity in the practice) are not covered under USERRA. You can see those at:

http://www.servicemembers-lawcenter.org/LAW_REVIEW_964.html

http://www.servicemembers-lawcenter.org/LAW_REVIEW_99.html

Of course if you are not an equity partner, then USERRA would cover you as long as you meet the other requirements.

Please let me know if you need any clarification. I would be glad to assist you further if I can.
Marsha411JD
Marsha411JD, Lawyer
Category: Military Law
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