Reprinted from the November 15, 2005 issue of MANAGER’S LEGAL BULLETIN, a widely read employment law newsletter that communicates legal guidelines to managers through real-life dialogue and concrete examples. Click here to view a sample issue, get more information or sign up for a risk-free subscription.

Military Leave Sparks Legal Wars

Although it may be difficult to manage a department in which one or more employees are out on extended military leave, state and federal laws, such as the Uniformed Services Employment and Reemployment Rights Act (USERRA), prohibit you from taking any adverse employment action against employees based on their military service.

HUP-TWO-THREE-FOUR...YOU DON’T WORK HERE ANYMORE

After enlisting in the Air Force Reserves, Kelsey Harding informed her manager, Elaine Almonte, that she would need time off for basic training.

“What am I supposed to do for the next three months?” Almonte asked after hearing the news.

Harding was shocked by Almonte’s reaction. “It’s just a few months. I’ll be back to work as soon as my training is over.”

“Maybe so, but you’ll be gone during our busy season,” Almonte commented. “If you ask me, it was inconsiderate and selfish of you to join the service now, knowing full well that you’d be leaving me in a lurch during our busiest months.”

Almonte continued to make comments like those until Harding left for basic training. While she was away, the manager complained even more about the employee missing work for military duty.

In Harding’s absence, the manager began interviewing job applicants.

“She’s gung-ho military,” Almonte told one applicant.

“Her job and the company aren’t on her mind,” she told another.

When Harding was, in fact, terminated, she marched into court and sued under USERRA. She also sued under state law for “outrage,” a claim limited to very egregious cases. In court, the company argued that her unpatriotic termination, even if it were true, didn’t evoke a true outrage claim. But the court begged to differ, ruling: “an onslaught of harassment, a slew of adverse repercussions, and a firing, all because the employee had enlisted in the U.S. Air Force Reserves would offend public policy.” Therefore, both her USERRA and outrage claims got a green light to proceed.

MILITARY LEAVE ORDERS

Unlike other employment laws, USERRA’s protection is absolute and unforgiving. In other words, USERRA does not provide exceptions for leave based on the fact that an employee’s training or active duty falls during your busy season or results in any other hardship on you or your company. While managing the workload of an employee on military leave may be difficult, it is no excuse for retaliating against someone who has volunteered to serve his/her country. You may transfer or hire a worker to fill the void, but this arrangement must be temporary.

FIVE, SIX, SEVEN, EIGHT...YOU ARE NOT WORTH THE WAIT

Jimmy Burgos had served as an officer in the Army National Guard throughout his employment. When he was called to active duty, he notified several company officials, including his supervisor, Kevin Hanrahan, about his activation. However, he never submitted a military leave form, as required under company policy.

About eight months later, Burgos informed Hanrahan that his tour of duty was over and he planned on returning to work. Instead of welcoming him back, though, the manager fired Burgos for failing to submit the required military leave forms. As a result, the employee sued under USERRA. A court of appeals allowed his claim to proceed.

MILITARY LEAVE ORDERS

You cannot prohibit employees from taking military leave or refuse to reinstate them to their positions just because they don’t complete the proper military leave forms as called for by company policy.

Although USERRA requires employees to make a timely return and a timely application to get their job back once their tour of duty is complete, there is no mandated, standard form for such application, and such notice can be verbal or written.

More information about this publication/Order a subscription