Employer Cannot Delay Reinstatement of National Guard Member
August 17, 2012
The Uniformed Services Employment and Reemployment Rights Act (USERRA) provides service members with broad rights to job reinstatement once their active duty status ends. There are limited exceptions to these reinstatement rights, including situations where a service member is discharged for less than honorable reasons. Last month, the Sixth Circuit Court of Appeals held that an employer violated USERRA when it delayed reinstatement to investigate the circumstances behind an employee's honorable discharge.
In Petty v. Metropolitan Gov't of Nashville & Davidson County, the plaintiff was a Nashville police officer who was sent to the Middle East as part of his National Guard unit. He returned earlier than anticipated following an honorable discharge that was provided as an alternative to a court martial proceeding after he was caught with homemade alcohol. When he disclosed partial details about the situation on his return-to-work questionnaire, the police department delayed his reinstatement to active duty pending an investigation of the circumstances leading to his discharge.
The Sixth Circuit affirmed a grant of summary judgment to the plaintiff on his USERRA claim. The court concluded that USERRA does not allow employers to delay reinstatement of honorably discharged service members regardless of questions regarding their conduct while a member of the service. While Nashville had the right to investigate the circumstances and possibly take action based on the results of the investigation, it must reinstate the employee pending the results of this process.
USERRA provides employee rights that extend well beyond any other federal labor law. Congress has repeatedly expressed its intent to provide service members with maximum legal protections, including the benefit of any doubt with regard to reinstatement rights. In this case, the court awarded more than $120,000 in damages to the plaintiff plus his attorneys fees and court costs. Any employer considering delay or denial of reinstatement to a returning service member should consult with legal counsel before taking such a step.