With the recent overseas military activities, many employers have been faced with managing the absences of reservists who have been called to active duty. Now a new decision from the federal Ninth Circuit Court of Appeals underscores that it’s critical to understand your military leave obligations and proceed cautiously before disciplining an employee who takes time off for military duty.
National Guard Member Asks For Leave
John Leisek, a quality assurance inspector for Brightwood Corp. in Oregon, belonged to the Oregon National Guard. Leisek owned and operated a hot-air balloon with the National Guard insignia on it, and he traveled to events around the country using the balloon as a National Guard recruiting tool.
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The National Guard ordered Leisek to perform temporary active duty by attending two ballooning events in Idaho and Wisconsin. These two events—and several others Leisek wanted to attend, including one in Colorado—would have taken him out of work for several weeks during the summer months. So he requested a leave of absence for the entire summer. Brightwood denied the request and told him to stop soliciting ballooning events because his absences would be a hardship for the company due to his specialized position.
Leisek attended the temporary duty in Idaho. While he was there, Brightwood plant manager David Duncan told him to report back to work immediately upon completing the Idaho duty. He also said Leisek couldn’t take time off the next week for the Colorado event because the National Guard hadn’t ordered him to attend. If he did so anyway, Brightwood would consider Leisek to have abandoned his job, Duncan said. What’s more, Duncan said Brightwood wouldn’t honor future orders involving the balloon project.
Employer Denies Reinstatement
Despite Duncan’s warning, Leisek went to Colorado and understood that his employment with Brightwood was terminated. After completing his National Guard assignments for the summer, he asked Brightwood for his job back. Brightwood said he could submit an employment application, but he refused and wasn’t re-employed.
Employee Claims Military Leave Law Was Violated
Leisek sued. He claimed that his discharge and Brightwood’s failure to re-employ him violated the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).
Brightwood countered that Leisek was terminated for his unexcused absence, in violation of company policy, to attend the Colorado balloon event. The company contended that it wasn’t required to grant Leisek this time off because the National Guard had not ordered him to be there.
Military Service May Have Motivated Discharge
The Ninth Circuit ruled that Leisek’s termination claim could proceed to a jury. The court explained that an employer violates the USERRA when an employee’s military status or service is a motivating factor in a decision to terminate the employee, even if there’s another legitimate reason behind the discharge.
In this case, the court said, the USERRA didn’t protect Leisek when he took time off for the Colorado event because he didn’t attend under National Guard orders. And the USERRA only requires re-employment following military activities that were ordered by a branch of the uniformed services.
However, there was evidence that Brightwood’s termination decision was also motivated by Leisek’s National Guard status. Specifically, since Leisek’s promotion to quality assurance inspector, Brightwood allegedly had considered a plan to restrict his Guard-related absences to three weeks a year and deduct those absences from his vacation time. And plant manager Duncan told Leisek that the company wouldn’t honor future Guard orders. Plus, the court noted, it was unclear whether the employer had similarly enforced its absenteeism policy against employees who took unexcused time off for other reasons.
Use Caution
Be sure to proceed carefully if you have legitimate reasons to terminate an employee who has recently taken military leave. Maintain thorough documentation supporting your reasons and demonstrating that the employee’s military activities played no role in your decision. And verify that your actions are consistent with how you’ve treated other workers.