Under some circumstances, federal law provides job protections that may allow a veteran to keep a job that he or she would otherwise lose. While nearly all other workers could be fired for any or no reason, depending on the facts of the case, a veteran may only be fired “for cause,” which is a much higher standard than one would normally see in employment contracts.
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) gives employers a number of obligations concerning the treatment of members of the U.S. military returning to their civilian jobs. This law is different from other antidiscrimination laws in several ways. First, USERRA covers all public and private employers, no matter how small the business. By contrast, the federal Family Medical Leave Act only covers employers with 50 or more employees, while Title VII covers those with 15 or more employees.
Additionally, USERRA’s “escalator” requirement states that veterans returning from service should be re-employed in a position similar to what they would have attained if they were not absent for military service. They should receive the same seniority, status, pay, and other rights and benefits determined by seniority (with some exceptions) as an employee who had been in that position for their term of service. Under other laws, the best one could hope for after returning from a medical leave, for example, would be the same job one left or one that’s similar.
USERRA has no statute of limitations of any kind for claims that accrued after October 10, 2008, while Title VII requires a filing of a complaint with the Equal Employment Opportunity Commission within 180 or at most 300 days (depending on whether a state or local agency could investigate the case also).
The law also changes at-will employment, imposing a “for cause” standard for terminating employment for veterans who return to work after a month or more of military service. Veterans away from work for between 30 and 180 days may not be discharged except for cause for six months following their return to work. Those away for more than 180 days of service have that same protection from discharge for one year.
Federal Appellate Court Finds Not Enough Evidence to Justify Firing National Guard Member
A case decided by the U.S. Court of Appeals for the Tenth Circuit shows that if you fall under USERRA’s protections, your employer may need to jump through some hoops before firing you.
Paul Starr is a former Marine who worked for QuikTrip while also serving as a member of the Oklahoma National Guard. He left his job for a year in 2007 for a deployment to Iraq and left again in 2011 for a nine-month tour in Afghanistan. In June 2012, he returned to work but was fired in August. The company stated that it fired Starr for violating its written two-hour “no call/no show” policy three times in just over a month.
That policy states that an “employee that arrives more than two hours late for [his] scheduled start time and has not called to inform [his] immediate supervisor of being tardy” could be issued a written warning for the first offense and could be terminated for the second offense, though “[e]ach circumstance is reviewed on an individual basis.”
The evidence showed that Starr had problems with his job attendance. On July 20, 2012, Starr violated the policy, but QuikTrip chose not to give him a written warning in view of his recent military service. When, less than a week later, Starr violated the policy a second time, QuikTrip gave him a written warning. Starr signed the warning, which spelled out the policy and warned him that his next violation would “result in further disciplinary action including termination.” The warning also stated that “[t]his is the employee’s last chance to improve; termination will result if the problem is not resolved.”
Soon after the second violation, Starr met with the company’s personnel manager. Starr testified at his trial that the manager had told him he “would be okay” if he missed a shift as long as he called his supervisor “[b]efore the start of the next working day.”
On August 28, Starr again didn’t report for work or call within two hours of his start time, though his wife had called for him the previous day. Starr was fired for violating the no-show policy.
In most cases covered by other employment laws, this would be a “slam dunk” for the employer. Indeed, the trial court dismissed Starr’s case. But the appellate court reversed the decision under USERRA’s different standard.
When an appellate court reviews a dismissal, it generally gives the plaintiff the benefit of the doubt. The court will look at the evidence in favor of the plaintiff and decide whether important factual issues need to be determined before the case is dismissed. Here, the appellate court found that Starr’s claim of termination without cause needed to be explored further because Starr raised a genuine factual dispute: whether he had notice that his failure to comply with the written two-hour policy could result in his termination.
The court stated that the employer had to show that there was “cause” for the firing under USERRA by establishing both that it was reasonable to terminate the employee based on his conduct and that the employee had express or implied notice that the conduct in question would give the employer cause to terminate his employment.
While the company may portray its conduct as “no good deed goes unpunished,” Starr successfully argued to the appellate court that the company didn’t uniformly enforce its policy. Further, since the personnel manager verbally contradicted the written policy, that justified Starr’s position that he may not have known what was, or wasn’t, required of him to keep his job.
Starr stated that QuikTrip’s evidence failed to show that he had notice that he would be fired for violating the two-hour policy. The company had made exceptions for him in the past, and the personnel manager told him before his firing that he “would be okay” if he called his supervisor before the next working day. Starr’s wife also called his absence in the day prior to his scheduled shift.
The lower court ruled that the company could enforce the rule against him even if it hadn’t done so in the past. It also stated that the rule was that the call had to come within two hours of his shift’s start. The appellate court agreed that just because the company went easy on Starr for prior violations, that didn’t mean that it couldn’t enforce its policy. But the court also found that there was contradictory evidence as to what the personnel manager told Starr, such that the case needed to proceed on its facts. The appellate court therefore overturned the dismissal and sent Starr’s case back to trial.
Summing It Up
Within certain limitations, USERRA provides rights to some veterans that aren’t available to the rest of the workforce. While Title VII doesn’t require an employer to show “cause” before terminating a woman or an African American, USERRA requires that “cause” may need to be shown to fire a veteran after a return from active duty.
If you think you may have been, or will be, discharged without cause in violation of USERRA:
- Keep copies of any documents, e-mails, or text messages that can establish your employer’s knowledge of your military status, the specific policy you’re accused of breaking, and any communications between you and management about discipline.
- Take notes of any relevant conversations, including who said what to whom, as well as the names of any witnesses.
- Take notes of any statements by your employers showing a bias against veterans. Write down any instances where nonveterans were treated better than veterans when it came to discipline or termination.
If you’re a veteran and you believe your employer is violating USERRA or has violated it in the past and you’ve suffered as a result, contact our office. We can talk about your situation as well as about what your rights are, what you can do to protect yourself, and how we can help.