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Rehiring veterans is simple, but it can be dangerous for employers

Oklahoma Employment Law Letter - September 2012
Zachary A.P. OubreZachary A.P. Oubre
 

 
By Zach Oubre

Just about everything is complicated for employers. Fortunately, the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) makes rehiring veterans simple.
 

A strong reinstatement right

Under USERRA, there are only four things a returning veteran must demonstrate to be entitled to full reinstatement to his former position:
  1. Proper notice to his employer in advance of his departure;
  2. A service period of fewer than five years;
  3. A timely request for reemployment accompanied by proper documentation; and
  4. Separation from military service under “honorable” conditions.

USERRA supersedes any employer’s policy, plan, or practice that limits the rights of returning military personnel to return to work. Any additional prerequisites to reinstatement that an employer tries to apply are unlawful—and you must reinstate the veteran to his former position. USERRA is probably the strictest employment law out there—mainly because you have no discretion about reinstatement if the returning vet meets the four statutory conditions.
 

Military discharge for winemaking

A Tennessee police department recently learned that the hard way when the U.S. 6th Circuit Court of Appeals ruled in Petty v. Metro Gov’t of Nashville & Davidson County.

Brian Petty was a Tennessee police officer and a member of the U.S. Army Reserves who was deployed to Kuwait in 2003. While on duty overseas, Petty was caught making homemade wine and sharing the alcohol with a female enlisted soldier, both violations of military rules. The military filed charges against Petty, who ultimately resigned from service and was honorably discharged “in lieu of trial by court martial.”

When Petty returned home, he immediately requested reinstatement to his former position and clearly met USERRA’s statutory requirements. However, instead of reinstating Petty, the employer put him through the return-to-work process it applied to all employees returning from an extended leave. During the process, Petty disclosed that military charges had been filed against him, but he refused to provide the department with any details.

The employer reinstated Petty to a desk job rather than his former patrol sergeant position and conducted an internal investigation. Eventually, the police department discovered that Petty had doctored the discharge paperwork he had submitted to omit the notation that his discharge was “in lieu of trial by court martial.” The department discharged him under its zero-tolerance policy for dishonesty, and Petty sued, alleging violations of USERRA.

So, the returning vet failed to explain his military discharge, submitted misleading paperwork during the reinstatement process, and was terminated under the employer’s written policy against dishonesty. Easy case for the employer, right? Not so under USERRA.

In its July 24 opinion, the federal court of appeals upheld an award of nearly $300,000 in back pay and damages to Petty. According to the court, “USERRA prohibits employers from placing ‘additional prerequisites’ on returning veterans seeking to exercise their reemployment rights.” Therefore, the employer was “not permitted to limit or delay Petty’s re-employment by requiring him to comply with its return-to-work process.”

Importantly, the court’s decision applied USERRA’s reinstatement provisions, not its discrimination provisions, which allow you to discharge a returning vet for a legitimate nondiscriminatory “cause.” As the court explained:

    Though USERRA may permit Metro to terminate Petty for dishonesty after reemploying him, [the department] never restored Petty to his position as patrol sergeant. Accordingly, we hold that the district court properly exercised its discretion in awarding Petty back pay and reinstatement under his reemployment claim.

Petty v. Metro Gov’t of Nashville & Davidson County, Case No. 10-6013 (6th Cir., 7/24/12)
 

Bottom line

The message to employers is simple. First, returning veterans are entitled to reinstatement if they meet USERRA’s four statutory requirements, and second, you should never, ever subject a returning veteran to any additional screening process.


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