Chad A. Staul, Esq.

A Minnesota federal court recently upheld an employer's decision to terminate an employee after he returned from military leave protected under the federal Uniform Services Employment and Reemployment Act ("USERRA"). The facts involved in this case mirror those commonly occurring in instances of other employee leaves of absence (FMLA, worker's compensation, etc.,) where employee deficiencies are discovered while an employee is away - perhaps even as a result of the employee being away - on protected leave.

The case involved an employee who, as a member of the Army Reserves, was called into service - something that has become a common occurrence in many workplaces today. The employer readily granted the employee a leave of absence and arranged for his duties to be covered by his supervisor while he was away. Prior to the leave, there had been no known problems with the employee's performance; however, once he was away on military leave, his supervisor uncovered a number of things that were not being done or were not being done well. Among other shortcomings, the supervisor noted the employee was meeting only rarely with his team; was not performing proper scheduling; had excessive overtime in the department for which he was responsible; and, generally, that the overall organization of the employee's department was poor. Further, the supervisor discovered that the employee was using a company-provided cell phone for personal use against company policy.

When the employee returned from military leave, he resumed his normal pre-leave title, duties and compensation as is generally mandated by USERRA. However, shortly thereafter, the employee was demoted to a different position with a different title, reduced salary and modified bonus structure. The employee voiced his dissatisfaction and the employer terminated his employment. The employee then filed suit claiming the employer violated USERRA by discriminating against him based on his military service after the employee had returned to work.

Under USERRA, the employee needs to first show that his military status was a motivating or substantial factor in the employer's actions. If that initial showing is made, the employer can defend by proving that it would have taken the same action regardless of the employee's status as a military member. The court noted that the employee failed to show that his military membership was "a motivating factor" in the employer's decisions and pointed out that although there was no indication of performance issues prior to the employee's leave, the leave actually "facilitated [the employer's] discovery of performance deficiencies that existed before, and independent of, his leave."

This case demonstrates that employers may be justified in taking disciplinary action, including discharge, even against employees who are protected by law and where the reasons for the action come to light as a result of the employee going away on a protected leave of absence. In a related USERRA case, an employer faced liability for failing to reinstate the employee who was granted leave. Although the employer in that case prevailed, the court illustrates that employers may have USERRA liability for employees they inherit through mergers or other business transactions. As the foregoing cases illustrate, employers in these kinds of circumstances are well advised to proceed with caution and only on the advice of knowledgeable legal counsel.