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Returning soldiers aren’t at-Will employees … temporarily

by on
in Employment Law,Firing,Human Resources

If you plan to terminate an employee who recently returned from military duty, you need a clear, business-based reason for your action. You can't fall back on "at-will status" as a reason for firing in such cases.

Reason: You know the Uniformed Services Employment and Reemployment Rights Act (USERRA) provides job protection to soldiers and reservists returning from active duty or training. But you may not realize that USERRA temporarily cancels the returning employee's at-will status.

That means if you want to terminate a returning reservist or soldier, you can only do so "for cause" and must be able to point to a solid job-based reason.

How long until at-will status returns? USERRA says returning soldiers who are gone more than 180 days receive this extra protection for one year. Those gone for 30 to 180 days are given six months worth of extra protection.

Recent case: Cheryl Francis, a computer technician for Booz Allen Hamilton, faced frequent discipline for tardiness, leaving work early and violating the company professionalism code.

Francis also served in the U.S. Naval Reserve. Soon after returning to work following a military deployment, the company fired Francis for continued tardiness and rudeness.

She shot off a USERRA lawsuit, alleging the company didn't have just cause for its actions. But the appeals court disagreed, concluding that she had been warned and that the reasons for her discharge rose to the level of "just cause." (Francis v. Booz Allen Hamilton, No. 05-1523, 4th Cir., 2006)

Final tip: Employers also have a duty to warn returning service members that their conduct may result in discharge. Employers have the burden of proof and must show their actions were "reasonable." As a practical matter, that means employees who file USERRA lawsuits will have their cases heard by a jury and not dismissed earlier in the process. That makes each case potentially very expensive, even if you ultimately win.  

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