Terminating returning soldier? You need to show cause and prove you gave warning — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

Terminating returning soldier? You need to show cause and prove you gave warning

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Many employers still don’t realize it: If one of your employees is called to active military service that lasts 180 days or more, you can’t summarily terminate that employee once he is back at work.

Even if he left as an at-will employee, for one year he can only be discharged for cause. And employers not only have to show reason for the termination, they also have to show that they warned the employee his job was in danger.

Recent case: Anthony Gairnese worked as a pharmaceutical sales representative for King Pharmaceuticals and is a member of the Army Reserve. He was called to active duty and served more than a year as a pharmacy technician at Bagram Air Base in Afghanistan.

King Pharmaceuticals didn’t have a policy in place on treating returning military personnel as “for cause”—not “at-will”—employees.

Soon after Gairnese returned to work, he got a new boss. She criticized his selling skills during a sales call and told him he made several mistakes. This was while he was racking up numbers to become the top seller in his territory.

When Gairnese was terminated, he sued, alleging he hadn’t been fired for cause and that the company never warned him he might be fired.

The court said a jury should decide whether King Pharmaceuticals had a good reason to terminate him and gave him adequate notice. (Gairnese v. King Pharmaceuticals, No. 09-CV-04839, ND CA, 2010)

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