Top Ohio Military Discrimination Attorney Reply: What are my re-employment rights under USERRA? Can I be fired without just cause when I return from active duty? As a temporary employee, am I covered USERRA?
The Uniformed Services Employment and Reemployment Rights Act (“USERRA”) is a federal law that provides reemployment rights to returning veterans and other members of uniformed services. Under USERRA, an individual who leaves his or her civilian job for military service is entitled to return to that civilian job. Moreover, a member of the military who returns to work after serving in the military cannot be terminated without “just cause” for six months if they served for at least 30 days, or for a year if they served for at least 180 days.
Our employment discrimination lawyers are often asked what just cause means, and because USERRA creates a just cause standard, it is particularly relevant in military discrimination cases. What is just cause? Basically, it is the opposite of “at-will.”
A vast majority of jobs are “at-will.” At-will means that you or your employer is free to end your employment at any time, with or without notice, for any reason at all, provided that the reason is not unlawful (such as race, gender, disability, age, and national origin discrimination or retaliation for filing a Worker’s Compensation claim).
The “just cause” employment standard is the opposite of at-will. Unlike at-will employment, an employer cannot terminate your employment for just any reason. Instead, the employer must show you truly deserve to be fired. In Jordan v. Jones, the Fifth Circuit Court of Appeals explained:
An employer can terminate a veteran or reservist for cause if the discharge satisfies two criteria of reasonableness: (1) “that it is reasonable to discharge employees because of certain conduct, and [(2)] that the employee had fair notice, express or fairly implied, that such conduct would be ground for discharge.”
As a result USERRA’s just cause requirement, it is a lot more difficult for an employer to just make up a pretextual reason for terminating a veteran or a reservist.
As an aside, USERRA does make a number of very limited exceptions to its requirements. One of these exceptions is when the employment the employee leaves is for a brief, non-recurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period. However, the burden of proof to establish that a position is temporary is on the employer. Likewise, this does not mean that employees in what some people might consider temporary jobs, such seasonal positions, are not entitled to protection under USERRA. Instead, the test is whether “employees are customarily continued in their employment with recognition of their preferential claims to their jobs.” In other words, if a seasonal employee would normally expect to return to work the following season, they can be said to have a reasonable expectation of continued employment, and are protected under USERRA.
Returning to Jordan v. Jones, David Jordan was an assistant district attorney when he was called up to active duty to serve in Operation Desert Storm. When David was honorably discharged, he attempted to return to his assistant district attorney job. “Not so fast,” said his boss, district attorney Grant Jones, who refused to reinstate Jordan. Your first reaction is probably to say that Mr. Jones is an asshole lawyer that is mistreating a courageous military member by refusing him re-employment. Mine was too. But, that is why you have to wait for all of the facts to come in.
Apparently, when Jordan left to serve in the Armed Forces, he forgot to clean out his office of his very sexually explicit materials, which was discovered by female staff as they were cleaning and organizing his office to create space for a substitute assistant district attorney to the office and handle Jordan’s case load in his absence. Yeah, that is pretty bad. But, wait, there is more. According to the appellate court decision in the wrongful termination case, Jordan having his sexually explicit materials mailed to him at his job. And because Jordan neglected to cancel his subscription, the sexually explicit materials continue to show up at his civilian employer’s office while Jordan was on active duty.
So now what do you think? I think it is pretty damn ass brazen to have porn shipped to your employer, and is clearly reasonable grounds for termination. Jordon’s manager had that same feeling and articulated that he was concerned that Jordan’s smut could subject the employer to a Title VII sexually hostile work environment lawsuit. Now, this may be a little bit of semantics, but I would rather an employer say we are concerned about not actually having a sexually hostile work environment as opposed to worrying about a sexual harassment law suit, but still both reasons should be grounds for termination.
Yet, Jordan not only disagreed, he filed a military discrimination suit. In filing suit for wrongful termination, he argued that having porn mailed to your office at work was not grounds to be fire. The trial court did not buy it and dismissed the case. Undaunted, Jordan appealed and made the same wrongful termination and military discrimination argument to the court of appeals, which held:
“The Veterans’ Act was drafted with the intent to shield a serviceman from discrimination by his employer, not to arm him with a sword to punish his employer for some perceived wrong unconnected to his status.” Burkart v. Post-Browning, Inc., 859 F.2d 1245, 1250 (6th Cir.1988). Congress intended the VRRA to protect veterans and reservists from “discharge without cause” resulting from the veteran or reservist status, not to give employee veterans and reservists a preference over other employees. Monroe v. Standard Oil Co., 452 U.S. 549, 560-61, 101 S.Ct. 2510, 2516-17, 69 L.Ed.2d 226 (1981) (internal quotations marks omitted).
Jordan argues that Kleberg County had a mandatory duty under the VRRA to reinstate him when he returned from active service. However, an employer can terminate or refuse to reinstate a veteran or reservist once he returns from active service or training, if the employer had legally sufficient cause to terminate the employee at the time that he left. See Burkart, 859 F.2d at 1248 (holding that because reservist only gave his employer fifteen minutes’ notice of his intent to leave for three weeks of training, the employer had sufficient cause to refuse to reinstate the reservist when he returned from training); Sawyer v. Swift & Co., 836 F.2d 1257, 1260-61 (10th Cir.1988) (holding that employer properly terminated reservist for cause because reservist failed to give his employer adequate notice of his intent to leave for training). Therefore, we hold that if an employer has sufficient cause to terminate an employee veteran or reservist at the time that he leaves for active service or training, the VRRA does not require the employer to reinstate the employee before the employer terminates him for cause. …
Jordan argues that Kleberg County could not terminate him for cause based on his receipt of sexually explicit materials because he was not on notice that this behavior was prohibited by his employer. The trial court specifically found that Jordan knew that if anyone at the district attorney’s office discovered his collection of sexually explicit materials, he would be terminated. The court found that Jordan knew that his actions were not within those reasonably and ordinarily accepted standards of personal conduct expected of employees in a public district attorney’s office. The evidence at trial demonstrated that Jordan’s boss, Grant Jones, had a policy against having sexually explicit materials in the office. Jones testified that he developed this policy after an incident occurred involving the display of a sexually explicit magazine in one of the offices. The only evidence to the contrary was Jordan’s testimony that he believed he was allowed to have the materials at the office as long as they were not on his desk. Given the trial court’s superior ability to assess the credibility of the witnesses, we conclude that the court’s finding that Jordan knew his behavior was prohibited by his employer was not clearly erroneous. Accordingly, the district court did not err in concluding that Kleberg County had cause to terminate Jordan.
If you have been fired, discriminated against, demoted based on your military service, be it for the Army, Navy, Air Force, Marines or National Guard; or even think that you might need an employment lawyer, then it would be best to call the right attorney to schedule a free and confidential consultation at 866-797-6040. If you have been wrongfully terminated or fired for any reason within one year of returning from serving in the United States Armed Forces, you may have a claim. Do not wait. Call the right attorney now. You have protected us. Let us protect you. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting employees’ rights and solving employment disputes.
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