Firing Guard or Reserve member? Better show you would have taken action despite service

Members of the military have greater on-the-job protection than many other employees—including the right to return to their former jobs following a period of active-duty service. They also have the right not to be terminated or otherwise punished for being part of the armed services and taking military leave.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides those protections.

A member of the military who suffers an adverse employment action can sue his employer under the USERRA if he believes that service was a motivating factor in the decision. If the employee can show military service was a motivating factor, then the employer must prove that it would have made the same decision whether the employee served his country or not.

Employers must therefore make sure they have solid reasons for all employment actions and be prepared to back them up in court.

Recent case:
Darold Maxfield worked for Cintas and was in the U.S. Army Reserve. He regularly took military leave for training and when his unit was called to active duty.

Before going on active duty, Maxfield had failed to meet his monthly sales quotas for the preceding quarter. When he returned, Cintas transferred him to another position that didn’t provide as many earning opportunities. (He had earned bonuses and commissions in his previous position, but now earned just a bonus.)

Then Maxfield went on leave again, and his boss marked the time as military leave. When he returned, he asked the bookkeeper to allow him to use sick time for the service days. When his boss found out, he fired Maxfield. Company rules required supervisor approval for taking sick leave when there is no illness involved, and the boss thought Maxfield was being dishonest.

Maxfield sued, alleging two USERRA violations. First, he claimed the transfer was illegal. Next, he argued he was fired for taking military leave.

A jury heard each claim. On the first one, it concluded that the employer had used military service as a factor in the transfer, but that the employer had also proven that it would have transferred any employee who had performed as poorly as Maxfield had.

On the second claim, the jury concluded that the supervisor’s testimony that he would fire anyone who tried to get sick leave when not ill and who bypassed his supervisor was proof the company didn’t violate the USERRA.

Maxfield appealed, but the 8th Circuit upheld the jury’s decision. (Maxfield v. Cintas Corporation, No. 08-2266, 8th Cir., 2009)

Final note: Returning service members go through a period when they are no longer at-will employees. Employers can fire them only for cause. Employees who have served more than 180 days may not be fired without cause for one year after re-employment. Those who served 30 to 180 days may not be fired without cause for six months. Those who serve for fewer than 30 days don’t get the extra protection.