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No reemployment delay allowed for returning soldiers

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in Employment Law,Human Resources

In past wars, employers were expected to make huge sacrifices for the good of the country. While the current conflicts and the ongoing war on terror may not be hitting the home front quite as hard as WWII or even the Vietnam War, our nation’s soldiers have significant legal protections, and employers are expected to do their part.

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) controls how employers handle employees who also serve in the military.

As the following case shows, federal appeals courts are losing patience with employers that don’t know or don’t follow USERRA’s strict rules for reemployment.

Recent case: Brian Petty is a member of the Army National Guard and also works as a civilian patrol sergeant with a city police department. Back in 2003, Petty’s military unit was activated for duty in the Middle East. While stationed in Kuwait, Petty apparently took up winemaking. A military inspector caught him with a five-gallon container of home brew, which Petty admitted he drank and shared with a female soldier. Petty agreed to an honorable discharge in lieu of prosecution.

With discharge papers in hand, Petty showed up at police headquarters to request reinstatement to his position. Because the department required paperwork for all employees coming back from an extended leave, Petty had to provide a copy of his discharge form. He did not include the section that specified that he had been charged with alcohol offenses. He did provide a signed release for all military records.

The department assigned him to a desk job while it reviewed his fitness to return to patrol sergeant duty. Then the police department opened an investigation into whether Petty had been entirely honest in his reemployment paperwork. While Petty was still restricted to desk duty, the department got a copy of his military records and noticed that he had resigned from the armed forces in lieu of facing a court martial.

By then, weeks had passed and Petty had had enough. He sued.

In court, he argued that USERRA guaranteed him his job back if he met the law’s requirements—that is, he had to show up and request his position back.

The 6th Circuit Court of Appeals agreed and ordered a stop to the feet-dragging.

It said the police department “was not permitted to limit or delay Petty’s reemployment ...” and had to reinstate him. (Petty v. Metropolitan Government of Nashville-Davidson County, No. 07-5649, 6th Cir., 2008)

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