If an employee who is also in the military is called to active duty, is released with an honorable discharge and asks to return to his old job, you cannot place any extraneous conditions on his return. You can’t ask for a medical examination or delve into the details of his military service. Upon presentation of discharge papers showing an honorable discharge, you must reinstate him—or face litigation.
Recent case: Brian worked as a police officer and was a member of the Army Reserve. He was called up for service in Operation Iraqi Freedom and told the police department he would be deployed to Kuwait.
While on active duty, Brian apparently engaged in a little home brewing and was accused of furnishing alcohol to enlisted personnel. He faced a court martial, but was allowed to resign his commission in lieu of trial. He received an honorable discharge.
Brian provided a copy of his military discharge to his employer, which demanded that he undergo the return-to-work process other employees on extended leave had to complete. That included drug screening and a personal history questionnaire that asked about any criminal charges occurring during the absence. That’s when Brian’s court martial charges came to light.
When he wasn’t immediately reinstated, he sued under the Uniformed Services Employment and Reemployment Rights Act.
The 6th Circuit concluded Brian should have been immediately reinstated without any preconditions and upheld a monetary award of over $290,000. (Petty v. Metropolitan Government of Nashville-Davidson County, No. 10-6013, 6th Cir., 2012)
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