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Recognize The Legal Dangers Of Considering Military Service In Employment Decisions

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in Discrimination and Harassment,Employment Law,FMLA Guidelines,HR Management,Human Resources

With the war in Iraq dragging on, some employers’ patience is wearing thin when it comes to managing leaves of absence for National Guard troops and reservists.

But reacting negatively to a military-leave request is not a wise maneuver. Reason: Unlike other federal anti-discrimination laws, the Uniformed Services Employment and Reemployment Rights Act (USERRA) doesn’t require much in the way of proof.

If someone claims that his or her military service—past, present or future—was considered as a negative factor in any employment decision, that person has a good shot at winning a USERRA suit.

That’s why it is crucial to develop employment policies that clearly show you honor military service, even if an employee’s service is inconvenient for your business.

Recent cases: When Army reservist Donald Maxfield was activated for duty, his employer, Cintas, called Maxfield’s superior officer to ask whether it was “imperative” he serve at that time. The officer said that it certainly was.

When Maxfield returned from military leave, Cintas transferred him to a position that paid a set wage, rather than his previous commission. He again went on active duty and returned to find his position eliminated. The company then moved Maxfield to a telemarketing spot.

After being called up a third time, Maxfield was fired because his supervisor said he wrongly used sick and vacation time for part of his military leave (which an HR rep had told him it was OK to do).

He filed a USERRA lawsuit and the 8th Circuit Court of Appeals ordered a trial. It’s up to Cintas to show it would have fired Maxfield even if he had not been in the military. Proving a negative is a tough thing to do. (Maxfield v. Cintas, No. 06-2626, 8th Cir., 2007)

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