Wednesday, August 20, 2008

Right to reinstatement under USERRA for returning military personnel is absolute

In 1994, Congress enacted USERRA (the Uniformed Services Employment and Reemployment Rights Act), to protect the employment rights of the men and women who serve our country. Although this statute is not litigated as often as Title VII, it is nevertheless important to employers, especially in light of the number of military personnel returning from Iraq and Afghanistan.

USERRA guarantees returning veterans a right of prompt reemployment after military service, provided the employee meets five conditions:

  1. The employee must provide the employer notice that the employee intends to take leave for military service.
  2. The cumulative length of the employee's service cannot exceed five years.
  3. If the leave exceeded 30 days, the employee makes timely reapplication for employment.
  4. If the leave exceeded 30 days and upon the employer's request, the employee documents the timeliness of the reapplication and the duration of the leave.
  5. The employee's separation from military service was under "honorable conditions."

If an employee meets these conditions, the employer must promptly reinstate that employee in a position the employee might have reached had it not been for the intervening military service, at the level of pay, benefits, seniority, and status commensurate with that position.

What happens, however, if an employee meets these conditions, but the employer has a good faith doubt about the employee's veracity in documenting the leave? Can the employer refuse to reinstate the employee, or reinstate the employee to a lesser position while it sorts out its good faith doubt. According to Petty v. Metropolitan Gov't of Nashville-Davidson Cty. (6th Cir. 8/18/08), the right to reinstatement is absolute, and the employer cannot place conditions upon it if the employee meets all of the statutory requirements.

Brian Petty was a patrol sergeant in the Nashville police department prior to his deployment to Iraq. His tour of duty ended prematurely when he was brought up on military charges for bootlegging wine to Kuwaiti natives in exchange for work. In lieu of going forward with a court martial, Petty was permitted to resign “for the good of the service.” The Army accepted his resignation and dismissed all charges against him.

Petty had to fill out certain return to work paperwork at the Nashville police department. On that paperwork, he disclosed the charges that were brought against him. He was kept out of work, without pay, for a month while the police department investigated. It ultimately permitted Petty to return to work, albeit at a lesser position, answering phones and filling out paperwork at a desk. He remained at that desk job while the department continued to investigate the veracity of his representations about his military charges.

The Court ruled that if an employee meets all of the prerequisites for military leave, reinstatement to the same or similar position is mandatory. It is irrelevant if the employer has a good faith doubt in the veracity of return to work paperwork the employee completes.

It is of no consequence here that Metro believes it is obligated to “ensure that each and every individual entrusted with the responsibility of being a Metropolitan Police Officer is still physically, emotionally, and temperamentally qualified to be a police officer after having been absent from the Department.” In USERRA, Congress clearly expressed its view that a returning veteran’s reemployment rights take precedence over such concerns. Metro does not question Petty’s physical qualifications; instead, it questions only whether his conduct during his military service would disqualify him from returning to service in the police department. But Petty’s separation from military service is classified as “under honorable conditions,” which Congress has made clear suffices to qualify him for USERRA benefits.

Thus, the police department's doubt, in good faith or not, in Petty's veracity about his military criminal history is irrelevant to his return to work.

According to the Court, the employer's intent in not restoring the employee to his prior position is also irrelevant to the reemployment claim:

It is important to note that Petty was not required to make any showing of discrimination in order to sustain either of his reemployment claims. ... Section 4313 states that any “person entitled to reemployment under section 4312” — which we have found Petty to be — “shall be promptly reemployed in a position of employment in accordance with the” order of priority outlined in § 4313(a)(2). Thus, the express terms of § 4313 make its application contingent only on the prerequisites of § 4312, none of which include a showing of discrimination.

This case is significant for employers who deal with returning military personnel. It sets out a clear policy in favor of returning military personnel, and their absolute right to reinstatement if they simply meet the bare requirements of the statute. If the employer has a doubt in the employee's veracity, the employer's only option, under this case, is to reinstate the employee and then terminate after the fact for "just cause" if the employer verifies its doubts.

Next week, we'll take a look at the Court's handling of Petty's USERRA discrimination claim.

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