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Prepare to justify any adverse employment action affecting members of the military

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in Discrimination and Harassment,Human Resources

Members of the military who are called to active duty service have rights while deployed. Employers must be prepared to defend any decision that adversely affects the deployed employee.

Recent case: Jonathan worked for TXD and was a member of the Army National Guard. He was called to active duty and deployed to Iraq in Operation Iraqi Freedom. While he was deployed, his employer was sold to another company, which took over operations and hired all employees TXD listed as current employees.

Jonathan was left off the list and therefore wasn’t picked up by the new company. When he returned from active duty service, he sued, alleging that he had been denied a benefit other employees got (being placed on the list for hire) in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). The lower court dismissed his claim, but he appealed.

The 8th Circuit Court of Appeals reinstated his lawsuit, noting that if TXD let other workers who were on leave for other reasons than military service remain on the employee list and to be eligible for hire, then Jonathan should have been, too. To exclude him would be discrimination based on military service. (Dorris v. TXD, No. 12-3096, 8th Cir., 2014)

Final note: Under USERRA, it’s up to the employer to show it would have taken the same action against the employee whether he was a member of the military or not.

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