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Collect ample evidence of wrongdoing before firing military vet covered by USERRA

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in Employment Law,Firing,FMLA Guidelines,HR Management,Human Resources

The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides returning soldiers, sailors and other service personnel with additional employment rights that other employees don’t always enjoy.

One of those is the right to remain employed unless fired for just cause. In effect, USERRA temporarily turns what were once at-will employees into employees with job protection.

However, they can still be terminated for cause.

That makes it very important for employers to justify any firing with evidence the employee broke a rule or didn’t perform his job to acceptable levels.

Recent case: Jordan To worked as a research clerk for U.S. Bancorp when he decided to enlist in the Minnesota National Guard. He received orders to report for training at Fort Benning, Ga., and was stationed there from April 20 to Aug. 1, 2008.

U.S. Bancorp has very specific rules about reporting absences: Employees must call their immediate supervisor and speak with that supervisor directly if they are going to be off work. Leaving a voice mail or sending an e-mail isn’t enough. That’s true even if the employee has already called HR to inquire about FMLA leave or to report taking such leave. Employees who do not contact their supervisor for two consecutive days and do not show for work are deemed to have abandoned their jobs.

When To returned to Minnesota, he participated in a conference call with HR and his supervisor. During that call, To said he wasn’t feeling well and could not return immediately.

Over the next few weeks, To continued to put off his return, instead getting doctors’ notes that said he was sick. He did not always call his supervisor, although he regularly faxed notes to HR.

Finally, he did not return to work when he had said he would and did not contact anyone from Aug. 18–22. That’s when he got a letter notifying him he had been terminated for abandoning his job.

To sued, alleging he could only be fired for cause because he was a returning soldier. The court tossed out the claim, reasoning that ignoring call-in rules was cause for discharge. (To v. U.S. Bancorp, No. 08-5979, DC MN, 2010)

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