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Discovered poor work while employee was on military leave? Go ahead and discipline

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in Employment Law,FMLA Guidelines,Human Resources,Leaders & Managers,Management Training,Performance Reviews

Employees returning from military service are entitled to come back to their old jobs, and they have other limited job protections, too.

But those protections don’t mean employers can never discipline or demote employees who have been serving in the armed forces. Just make absolutely sure you’re doing so for legitimate business reasons, such as documented poor performance.

As the following case shows, demoting an employee who recently returned from active duty is possible, even if you only discovered his poor performance while he was serving his country.

Recent case: Andrew Jones worked as director of rehabilitation sales for Handi Medical Supply. He was also a second lieutenant in the Army Reserve.

When Jones’ unit was activated, he told Handi he had orders requiring him to serve on active duty for several months. He asked for military leave. The company approved his request and even lent him $4,000 to cover personal expenses. Jones then left on military leave.

While Jones was serving, another employee took over his work responsibilities. It was only then that the company discovered that Jones hadn’t been doing as good a job as they thought. The replacement employee said that the team Jones directed was working excessive overtime, that Jones rarely met with them and that his files were disorganized.

When Jones returned, Handi placed him back in his old job. Shortly after, based on the performance problems discovered during his absence, management told Jones he could best serve the company in a sales rather than supervisory position. Handi transferred Jones from a private office to a cubicle and slashed his pay by $15,000 to bring it in line with other salespeople—the same employees he had previously supervised. The company did, however, forgive the $4,000 personal loan.

Jones protested and said he would resign. During a meeting to discuss his resignation, management immediately terminated Jones.

He sued, alleging that his demotion was motivated by his military service. He claimed the timing alone was enough to show a connection between his military leave and his demotion.

The court disagreed, ruling that although returning service members are entitled to reinstatement, that doesn’t mean they can never be disciplined. The court said Jones would first have to show that his demotion was related to his service in some way. He couldn’t do that.

Instead, the court bought Handi’s argument that its motivation for the changes was the discovery that Jones wasn’t doing his job as well as it had believed before he went on military leave. (Jones v. Handi Medical Supply, No. 08-5363, DC MN, 2009)

Final notes: Employers violate the Uniformed Services Employment and Reemployment Rights Act (USERRA) if the employee’s “membership in the uniformed services is a motivating factor in the employer’s action.”

In this case, the employee-soldier never had a chance to make that case, because timing alone isn’t enough when the company could show his poor work. There was no evidence his service motivated the demotion decision; there was plenty of evidence that his poor performance did.

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