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USERRA: Beware any reference to military service when justifying discipline

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in Discrimination and Harassment,Human Resources

Employees who belong to the National Guard or Reserve typically have to report for training for one weekend a month and then train for another 15 days during the year.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) makes it illegal to discriminate against those who serve. Counting the time off required for reserve personnel to train violates USERRA. Make sure you don’t count it.

Recent case: Romona worked for a school district and was a member of the National Guard. She missed a training session on school fundraising in which teachers were informed they could no longer sell candy.

When her fundraising efforts fell short and a group of students complained they might not be able to attend an out-of-town competition, Romona’s supervisor told her that “if not for your military service obligations, you would not be in the situation you are in now.”

Romona then arranged for a candy selling fundraiser, apparently unaware of the new rule. When caught, she was investigated. The final report mentioned both her military leave and the candy sale. She was eventually terminated.

She sued, alleging her military service had been used against her.

The court said the case could go to trial because it was clear that her military service was “a factor” in the termination decision. (Mayeaux v. Houston Independent School District, No. 3:11-CV-242, SD TX, 2014)

Final note: Never consider military service in discipline.

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