Now is not the time for your company to appear unpatriotic, in the public's eye or before a judge. As a recent ruling shows, courts are bending over backward to give returning military reservists their maximum rights in the workplace. And that means you'll face a nearly invincible foe if you challenge their reinstatement. Example: Police officer Gary Lapine resigned after criticizing the department. He then went on active duty with the Army Reserve. Two years later, while still on active duty, he asked to be reinstated to the police force. The police chief refused, so Lapine sued under the Uniformed Services Employment and Reemployment Rights Act (USERRA).
USERRA says that if an employee takes a military-related leave of less than five years, you must re-employ him at his old job or one with similar status, seniority, pay and benefits.
A district court said Lapine was entitled to his old police job, and an appeals court agreed. The court said it didn't matter that Lapine got his order to report to active duty after he resigned from the force. Nor did it matter that he quit for personal reasons. He had applied for active duty prior to resigning, the court said, and that was enough to indicate he planned to resign to perform military duty. (Lapine v. Town of Wellesley, No. 01-2054, 1st Cir., 2002)
Advice: While this employer got hit with a bad ruling, it shows just how broadly courts will apply USERRA to hatch a patriotic result.
For now, it's safer to avoid a battle over rehiring reservists. While USERRA technically lets you deny re-employment if it would create an undue hardship, the cost to prove your point in court will likely exceed the cost of re-employment. Remember, departing reservists must notify you in advance of their absence, and they must apply for re-employment in a "timely manner" after their return.
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