USERRA “Employer” Includes Entities with Shared Control Over Employment Opportunities (Not Just Payor or Direct Supervisor)

1. Introduction

In United States v. State of Kansas Department of Health & Environment (10th Cir. Dec. 30, 2025), the United States sued the State of Kansas (through the Kansas Department of Health and Environment, “KDHE”) on behalf of Stacy Gonzales, a member of the United States Army National Guard. Gonzales worked as a county disease intervention specialist at the Finney County Health Department in a position funded largely through a KDHE-administered federal “Aid-to-Local” grant. When KDHE elected not to renew the grant, Finney County eliminated Gonzales’s position. The government alleged the decision was connected to Gonzales’s upcoming military deployment and thus violated USERRA.

The appeal presented a threshold issue: whether Kansas/KDHE could be Gonzales’s “employer” under USERRA even though Finney County issued her paycheck and handled formal HR functions. The district court granted summary judgment to Kansas, holding KDHE was not an employer because it could not hire/fire Gonzales, did not supervise her, and did not set her pay/benefits. The Tenth Circuit reversed, holding the district court adopted too narrow a view of “employer” and misapplied the summary judgment standard.

2. Summary of the Opinion

The Tenth Circuit held that USERRA’s definition of “employer” (38 U.S.C. § 4303(4)(A)) is not limited to entities with direct, absolute, or formal control. An entity can be an employer if it either (1) pays salary/wages or (2) has “control over employment opportunities.” The statute’s structure contemplates that multiple entities may concurrently qualify as employers where responsibilities are shared or delegated.

Applying Rule 56, the court concluded that record evidence—viewed in the light most favorable to the non-movant—could permit a reasonable factfinder to find KDHE had sufficient “control over employment opportunities” through its role in (i) hiring input, (ii) training and performance auditing, (iii) job expectation setting via KDHE manuals and grant objectives, (iv) participation in evaluations, and (v) decisive influence over continued funding that effectively determined whether the position existed. The court therefore reversed summary judgment and remanded.

The court also clarified that Kansas did not qualify as an employer under the “pays salary or wages” prong on this record, because Finney County issued Gonzales’s paycheck and set her compensation, even if KDHE funds contributed substantially.

3. Analysis

A. Precedents Cited

1) Statutory text and “no added words” methodology

Muldrow v. City of St. Louis, 601 U.S. 346 (2024): Cited for the principle that courts should not impose “heightened” requirements not found in statutory text. Here, it supported rejecting Kansas’s attempt to read USERRA’s “control” as requiring direct or absolute control.
Corner Post, Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 603 U.S. 799 (2024): Reinforced that statutory text controls over free-floating legislative intention. The court used this to keep the analysis anchored to § 4303(4)(A)’s words.
Tarango-Delgado v. Garland, 19 F.4th 1233 (10th Cir. 2021) and Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560 (2012): Used for ordinary-meaning interpretation and contextual reading of undefined terms (“control,” “pay,” “salary,” “wages”).
Advocate Christ Med. Ctr. v. Kennedy, 605 U.S. 1 (2025) and Helix Energy Sols. Grp., Inc. v. Hewitt, 598 U.S. 39 (2023): Cited in parsing “paid,” “salary,” and “wages” to explain the payment prong and why Kansas did not satisfy it on this record.
Bostock v. Clayton Cnty., 590 U.S. 644 (2020): Used to reject importing an atextual “grant relationship” exception into USERRA’s broad definition of employer.

2) Multi-employer and shared-control concepts

White v. United Airlines, Inc., 987 F.3d 616 (7th Cir. 2021): Central persuasive authority. The Tenth Circuit relied on White’s reading that § 4303(4)(A)(i) does not require “direct control” over the specific violation, only “control over ... employment opportunities writ large,” and that “delegate[]” signals coverage of both direct and indirect employers.
United States ex rel. Eisenstein v. City of New York, 556 U.S. 928 (2009): Cited for the interpretive canon that statutes should be construed to give effect to all provisions. It supported reading § 4303(4)(A)(i) as meaningful—i.e., as contemplating more than one employer.
Knitter v. Corvias Mil. Living, LLC, 758 F.3d 1214 (10th Cir. 2014): Not a USERRA case, but invoked by analogy. It provided the idea that joint-employer analysis focuses on whether an entity exercises sufficient control, not merely formalities.
Staub v. Proctor Hosp., 562 U.S. 411 (2011): Quoted for the observation that USERRA is “very similar to Title VII,” legitimizing cross-pollination of “control” and multi-actor employment concepts.
Estes v. Merit Sys. Prot. Bd., 658 F. App’x 1029 (Fed. Cir. 2016): Used to illustrate how “control over employment opportunities” can exist where an entity effectively determines continued employability (e.g., making the worker unwelcome so the contractor must terminate). This supported treating KDHE’s grant-renewal decision as potentially dispositive over whether Gonzales’s job could continue.
United States v. Nevada, 817 F. Supp. 2d 1230 (D. Nev. 2011): Cited in connection with employer status analysis (including reference to regulations) and authority to hire.

3) Administrative regulations after Loper Bright

Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024): The court recognized that although agency interpretations no longer receive Chevron deference, they can still have persuasive weight. It used Loper Bright to justify considering the Department of Labor’s regulation, 20 C.F.R. § 1002.37 (2025), which expressly contemplates that an employee may have multiple USERRA employers (e.g., a security guard who reports to both the security company and the site owner).
The regulation supported the court’s view that shared reporting and divided oversight can still generate shared USERRA compliance obligations.

4) Summary judgment standards

Green Country Food Mkt., Inc. v. Bottling Grp., LLC, 371 F.3d 1275 (10th Cir. 2004) and Pirkheim v. First Unum Life Ins., 229 F.3d 1008 (10th Cir. 2000): The court emphasized de novo review and the requirement to draw inferences in favor of the party opposing the particular motion in cross-motions.
United States v. Sup. Ct. of N.M., 839 F.3d 888 (10th Cir. 2016) and Christian Heritage Acad. v. Okla. Second Sch. Activities Ass’n, 483 F.3d 1025 (10th Cir. 2007): Used to underscore that cross-motions do not eliminate factual disputes; genuine issues of material fact bar summary judgment.

5) Rejection of speculative slippery-slope reasoning

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006): Invoked to reject a slippery-slope argument and to favor case-by-case adjudication.
Silva v. Dep’t of Homeland Sec., 112 M.S.P.R. 362 (M.S.P.B. 2009): Cited to reinforce that finding the government an employer in one contractor scenario does not automatically make it the employer for all contractors—again supporting a fact-specific approach.

B. Legal Reasoning

1) Two independent statutory paths to “employer” status

The court treated § 4303(4)(A) as creating two alternative, sufficient bases: (i) paying salary or wages; or (ii) having control over employment opportunities. It rejected efforts to collapse these into a single, formal-employment test.

2) “Control” is not limited to direct, formal, or absolute authority

The court’s core interpretive move was negative implication: because Congress did not say “direct control” or “exclusive control,” courts may not add such requirements. It further relied on § 4303(4)(A)(i) (delegation) to infer Congress expected multi-employer situations, which would be undermined by a direct/absolute-control requirement.

3) “Employment opportunities” encompasses obtaining and continuing employment, and terms/benefits within employment

The opinion treated “employment opportunities” as broad enough to include initial hiring opportunities and continuing retention, and potentially aspects of job terms and benefits—so long as the defendant exercises meaningful power over those opportunities.

4) Application to KDHE: why summary judgment was improper

The court did not hold KDHE was an employer as a matter of law; it held the record could support that finding and therefore required a trial-level factfinding process. Key evidence supporting KDHE “control over employment opportunities” included:

Hiring input: Gonzales testified KDHE’s Coppedge interviewed her; Coppedge testified his usual practice was to participate on county interview panels, rank candidates, and help decide who the county would hire. The district court’s statement that “Finney County staff interviewed Gonzales” failed to credit contrary inferences.
Training and job standards: KDHE set training requirements and supplied the KDHE-authored Field Services Manual defining protocols and performance metrics.
Supervision of substantive work: Coppedge described supervising “all” state and local disease intervention specialists; KDHE conducted field audits and tracked deployment/data.
Performance evaluation: The county administrator signed the evaluation form, but KDHE provided the technical “Basic Job Performance” input because the county lacked substantive data. The court suggested the county’s role could be “ministerial” in that portion.
Funding leverage as functional job control: KDHE had annual discretion to renew or discontinue the grant, which in practice funded a large share of Gonzales’s salary and enabled the position to exist. When KDHE ended the grant, Finney County ended the position and Gonzales became unemployed—evidence of control over continued employment opportunity.

Critically, the panel characterized the district court’s analysis as treating the grant as a “wall” that insulated KDHE, viewing KDHE’s interactions with Gonzales only as grant oversight of Finney County, rather than as supervision and control over Gonzales’s job opportunity itself. Under Rule 56, that framing improperly weighed evidence and drew inferences in Kansas’s favor.

C. Impact

1) Practical expansion/clarification of USERRA “employer” in multi-actor public programs

The decision clarifies that in USERRA cases—particularly those involving grant-funded or intergovernmental program structures—courts must examine functional control over employment opportunities, not just formal payroll and HR labels. Entities that meaningfully shape whether a position exists, how it is performed, how performance is assessed, and whether it can continue may face USERRA obligations even without issuing paychecks.

2) Increased importance of fact development

The opinion signals that “employer” status under the “control” prong will often be fact-intensive and less amenable to early resolution where evidence shows shared oversight. Litigants should expect discovery into manuals, audit processes, evaluation inputs, meeting attendance requirements, renewal criteria, and funding decision rationales.

3) Limits preserved (no per se grantor liability; payment prong remains distinct)

The court rejected categorical “grant insulation,” but it also rejected categorical “grantor = employer” logic by insisting on case-by-case evidence of control and by noting Kansas did not satisfy the payment prong. Its refusal to embrace Kansas’s CDC “slippery-slope” hypothetical underscores that liability turns on actual control, not funding lineage alone.

4. Complex Concepts Simplified

USERRA: A federal law protecting servicemembers from employment discrimination based on military service and protecting reemployment rights after service.
USERRA “Employer” (38 U.S.C. § 4303(4)(A)): Broader than a typical “who signs the paycheck” concept. An entity is an employer if it either pays wages/salary or controls employment opportunities. Multiple entities can qualify at the same time.
“Control over employment opportunities”: Power or authority that meaningfully affects a person’s chances to obtain, keep, or progress in a job (or significant aspects of job benefits/terms). It is not limited to formal authority to hire/fire on paper.
Summary judgment (Rule 56): A procedure to resolve cases without trial only when there is no genuine dispute of material fact. Courts must view evidence and reasonable inferences in favor of the party opposing the motion being decided.
Joint or shared employment (conceptual analogy): A situation where two entities each control different aspects of the same job—e.g., one controls pay/HR, another controls day-to-day tasks, standards, or continued access to the job. Under USERRA’s text and regulations, both can bear compliance responsibilities.

5. Conclusion

United States v. State of Kansas Department of Health & Environment establishes (and, in key respects, clarifies) that USERRA’s definition of “employer” extends beyond formal payroll entities to include any entity that exercises sufficient functional control over a servicemember’s employment opportunities. The Tenth Circuit rejected a direct/absolute-control requirement, emphasized USERRA’s contemplation of multi-employer situations, and held that grant structures do not categorically shield an administering agency from employer status. Equally important, the decision reinforces rigorous Rule 56 discipline: where evidence supports competing inferences about control, the “employer” question belongs to the factfinder.