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, 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 tostating 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.