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Warn bosses: No disparaging military service

by on
in Employment Law,Human Resources

Something as innocuous as suggesting that military service might disrupt company operations can mean big trouble, especially if a supervisor makes the comment.

If a member of the National Guard or reserves is terminated, he or she can use the statement to show that military service was a motivating factor in that termination. That’s all that’s required under the Uni­­formed Services Employment and Re­­em­­ploy­­ment Rights Act (USERRA).

The burden falls on the employer to show that it would have made the same decision if the employee hadn’t been called to active-duty service. That’s incredibly hard to do when incriminating statements are floating around.

Recent case: Former UPS em­­ployee Walleon Bobo is a longstanding member of the Army Reserve and a combat vet who was injured while serving in Iraq.

After recuperating, Bobo returned to his job as a supervisor. He did not leave the military. The next time he requested military leave, his super­­visor allegedly told him he needed to choose between UPS and the military. He did, however, get leave.

Unfortunately for UPS, another supervisor sent a memo to management stating that he “did not want Walleon volunteering for additional military duty when he was needed at UPS.”

Bobo was terminated for allegedly falsifying training records. He sued, alleging that his service was a motivating factor in his termination.

UPS argued that the supervisor who made the “volunteering for duty” comment wasn’t involved in the termination decision.

The court concluded otherwise. It reasoned that since UPS managers saw the memo containing the comment, they were at least aware of the attitude and should have known that any recommended discipline against Bobo might be tainted by anti-military sentiment. (Bobo v. UPS, No. 09-6348, 6th Cir., 2012)

Final note: See “The 'surge home': Welcome service members back to work" for more on your USERRA obligations.

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{ 1 comment… read it below or add one }

Charles Buckman April 22, 2012 at 11:18 am

We have too many in the business world today that have never worn the uniform of the United States…They tend to treat those who do as servants who are expected to protect the country with minimum cost or disruption to their business.

Hated as it was, the draft was a leveling process in our society where all levels had to serve the country in one way or another.

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