Reservists' Rights Continue to Challenge Employers

Three recent cases remind us to be proactive and ensure that company managers are aware of employees' rights to reemployment, continued employment and the non-discrimination provisions of the federal Uniformed Services Employment & Reemployment Rights Act (USERRA). The October 2005 edition of this newsletter included an article about a company's violation of USERRA when, as a part of its reduction in force, it terminated an employee who had recently returned from Uniformed Service. Here are three more lessons learned.

Back in March in the case of Steenken v. Campbell Co. a U.S. District Court judge in Kentucky held that an employee could proceed on a hostile environment harassment claim under USERRA. You know that such claims are available under Title VII of the Civil Rights Act of 1964. Such claims have also been expanded to include the Americans with Disabilities Act (ADA) and Age Discrimination in Employment Act (ADEA). So how does this play out under USERRA? The employee asserted that he was ridiculed at work for his military service and status. As a result, the employee resigned and sued under USERRA, which prohibits discrimination in employment based on an individual's affiliation with the uniformed services, including in "any benefit of employment." The court held that the right to be free from a hostile environment is an employment benefit to which all employees are entitled. So being harassed based on military status would be a denial of that right making it actionable under USERRA.

Next, on June 14th, the 8th U.S. Circuit Court of Appeals held that an employer may have violated USERRA when it transferred an employee to another position after his return from Uniformed Service and later terminated the employee just three days after returning from a second military leave of absence. In Maxfield v. Cintas Corporation, the employer asserted business reasons for the employment actions (poor sales performance prior to the transfer and trying to obtain paid leave under false pretenses just prior to the termination). In this case, the court reminded us that, "an employer violates USERRA when a person's military service is a motivating factor in the discriminatory action, even if it is not the sole factor."

Then, in an oddly similar case, on June 15th, an Oregon jury awarded over $1 million to another employee who was also demoted and subsequently fired shortly after returning from active duty. (Patton v. Target Corp.) Upon his return to work, the employee found he had been demoted. He then emailed his coworkers and also contacted the National Guard seeking assistance. The National Guard then contacted the employer on the employee's behalf. Shortly thereafter, nine days after his return to work, the employee was fired. The company's explanation for the discharge was that the email message constituted a violation of the company's policy and disrupted the workplace. The jury found that the demotion was, in fact, unrelated to the employee's military service but that his having contacted the National Guard was at least a motivating factor in the discharge.

Practical Application? Give consideration to your company policies and practices. While these cases may not be binding in your jurisdiction(s), they are good food for thought. Consider adding "military status" to your anti-harassment policy. It is probably already listed in your EEO policy (it should be). Then include this in discussions during your training programs. Remind managers to be alert to casual workplace banter and teasing so inappropriate or offensive behavior can be corrected before it becomes a legal matter.

Also double check your military leave policy. I still come across policies in Employee Handbooks that read that an employee who goes out on military leave may go on COBRA benefits for up to 18 months. Be sure to update that policy (and your COBRA policy) to indicate that employees covered under USERRA may continue on COBRA for up to 24 months. That was changed with the new USERRA regulations issued in December 2005.

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