The U.S. military is likely to be involved in international conflicts for the near future. Even as deployments in Iraq wind down, the war in Afghanistan is heating up. That means that lots of reservists will continue to be called to active service, sometimes for long stretches of time.
Employers must deal with employees being called to military service, even if that forces them to do more work with fewer people during the current economic crunch. The Uniformed Services Employment and Reemployment Rights Act (USERRA) and the grant special rights to employees who also serve in the armed forces.
Those rights include leave to serve, plus reinstatement to their jobs as if they never left.
Some managers may resent the burden the law causes. Too bad. If they show that resentment, it may be evidence the soldier can use to prove that military service was a determining factor in an employment decision such as termination or demotion.
Recent case: Kelly Hance serves in the National Guard and worked as a conductor for Norfolk Southern Railway Company. He claimed he often heard his supervisors complain about the military and his time off that was service-related.
When he was fired shortly after returning from active duty, he sued, alleging USERRA violations.
A federal court said he had proven, partly with the anti-military statements, that the decision to terminate him was at least somewhat motivated by his military service. The railway appealed, but the 6th Circuit Court of Appeals concluded the lower court was correct. (Hance v. Norfolk Southern Railway Company, No. 07-5474, 6th Cir., 2009)
Final note: Members of the military receive extra protection against discharge after long deployments, including the right to be fired for cause only.
- USERRA retaliation rules mirror those in Title VII
- Don't give up on accommodations too early; show a 'good faith' effort
- FMLA leave expired? Be equitable when firing
- OK to reject applicant who volunteers that disability can't be accommodated
- Can we require employees to waive their rights to file an EEOC charge?