An employer who denied prompt reemployment to an employee returning from military duty, due in part to his alleged “dishonesty” in the reinstatement process, violated the Uniformed Services Employment and Reemployment Rights Act, the Sixth Circuit decides.

While serving his military duty, the employee had resigned his commission in lieu of court martial proceedings. His employer required all employees returning from leave to undergo return-to-work processing, and placed him in another position while investigating the circumstances of his military discharge. One of the criteria for USERRA’s reemployment protection is that the separation from military service is under “honorable conditions.” The employer subsequently failed to reinstate him to his original position because it suspected he had altered his military paperwork to conceal the real reason for his separation.

The Sixth Circuit says that under USERRA, the employer “was not permitted to limit or delay [the employee’s] reemployment by requiring him to comply with its return-to-work process.” The Court says that the employer’s return-to-work process constituted “additional prerequisites” for returning military veterans in violation of the law, despite the fact that the process applied to all other employees regardless of military service. Since the return-to-work process was improper, the investigation spawned by the process “cannot serve to delay [his] statutory right to reemployment if the prerequisites for reemployment have been met.” The employer never proved that the employee was disqualified for reinstatement, and thus “clearly” violated the law, decides the Court. Petty v. Metropolitan Government of Nashville-Davidson County

A maintenance technician who served two tours in Iraq as part of the Alabama National Guard, and who claimed that he was harassed at work due to his military service, can sue the company under the Uniformed Services Employment and Reemployment Rights Act, a federal district court decides.

The worker said that his direct supervisors had demanded he provide “nonexistent military orders” for his monthly Guard weekend training, forbade him from missing work due to his Guard training, made derogatory comments about the Guard in front of the employee and other workers, and attempted to coerce his coworkers to falsely state that he had violated company policies. After the worker had his Guard sergeant confirm that there were no written military orders for the monthly training with the company’s Human Resources department, the harassment escalated. The employee was subsequently terminated for sleeping on the job.

The Court says that although the worker did not show that his military service was a “motivating factor” in his termination, a claim for harassment on account of military service is cognizable under USERRA. “This conclusion is consistent with the purpose of USERRA-–namely, to encourage individuals to join the military by assuring them that their jobs are not at risk…. An assurance that employees cannot be fired on account of their military service is meaningless without assurance that the work environment will not be so intolerable that they will feel forced to quit,” the Court holds. Dees v. Hyundai Motor Manufacturing Alabama, LLC

The Equal Employment Opportunity Commission has issued a fact sheet for employers on employing or re-employing disabled military veterans. Government statistics show that more than 30,000 veterans have returned home with service-connected disabilities—amputations, burns, post traumatic stress disorder and traumatic brain injuries.

The guidance covers how protections for veterans with service-connected disabilities differ under the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Americans with Disabilities Act, and describes how the ADA in particular applies to recruiting, hiring and accommodating veterans with service-connected disabilities.

As thousands of veterans return to civilian employment, companies must make sure to reinstate to the proper job, compensation, and benefits. According to a recent Bureau of National Affairs analysis by Mark Girouard and Wendy Bunnell, as employers struggle with making these determinations, “there has been a concomitant increase in litigation” under USERRA. Girouard and Bunnell say that given the probability that the U.S. military will continue to rely on civilian soldiers, it will be crucial for employers to review leave policies, job application procedures, train their human resources, and keep abreast of judicial decisions interpreting USERRA.

HEC’s Sheri-Ann S.L. Clark and Carmen L. Osborne will be covering employer obligations under USERRA, discrimination issues, and the expanded Family and Medical Leave Act requirements for military family members on June 17.