In this case, the employee attended three weeks of National Guard training before returning to his job. On his first day back at the Target, a store manager and HR person greeted him with the news that he was being demoted from a Group Leader II to a Group Leader I because he did not “progress” well. Target contended that it had decided to demote him before he went on military leave but held off telling him until his return so as “not to interfere with his military training.”

Despite being warned against it, the employee sent an e-mail to co-workers about his demotion and new replacement. The employee also reached out to a military-support group (Employee Support for the Guard and Reserves) to assist him with reinstatement. The group contacted Target. He next filed a complaint with the U.S. Labor Department. Three days after a DOL representative contacted the company to inquire about the situation the employee was fired.

Target argued it terminated the employee because of the e-mail and performance issues. The court did not buy the retailer’s version, noting that it must consider several factors including the “temporal proximity” timeline between the plaintiff’s military service and the adverse action taken against him upon his return to work. Now, this discrimination claim is going to be reviewed by a jury.

Lessons Learned ... Without Going to Court

• Discipline in real time. Companies should provide immediate performance feedback to employees in order to avoid any intervening issues, like military leave (or pregnancy leave), from popping up and making the situation complex. That’s how retaliation cases get started.
  
  
• Document without any discriminatory references. Never document or make references to protected characteristics (age, race, sex, etc.) or activities (military leave, whistleblowing, etc.) in relation to an employee’s performance. Doing so can create an inference of discrimination and/or retaliation. For example, avoid documenting, “If she did not go out on military leave for so long she could have been put up for a management position sooner.” Never connect the two concepts together.
  
  
• Express no hostility about employees engaged in military duties. The courts considers this kind of testimony and specifically in this case they did. Allegedly, a Target manager made comments about how the company should “recruit less from the military to reduce the company’s exposure to personnel vacancies.” See the two concepts connected together? (Target noted the Deaprtment of Defense has recognized it as a “five-star” employer that frequently recruits from the military.)
  
  
• Look at your watches, calendars & sun dials. Map out the protected leave dates (military, family, medical, etc.) and the proposed employment action date(s) on a timeline. If you think they look too closely connected, what do you think a sympathetic jury will think?
  
  
• Try an “appreciative” welcome home approach. What ever happened to the upbeat, happy, “thanks-for-serving-our-county” welcome home handshake or party? Think about this being the first response rather than the downer of an adverse employment action followed by lawsuits, bad press and hard feelings.