We have just determined that we will be having a reduction in force. One of our employees, who was scheduled to be affected by the reduction, just notified us yesterday that he needed the day off to get a health exam as part of his enlistment process for military service. Since his selection for termination was unrelated to his possible military service enlistment, can we still follow through with our planned termination of his employment? We’re concerned about USERRA.
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As you are most likely aware, both the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) and many state laws prohibit an employer from discriminating against an individual on the basis of his or her membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services.
As with any form of illegal discrimination, the employer’s adverse action must be made because of the employee’s protected status. Adverse employment actions that are made in close proximity/time to an employee’s protected activity (in this case, military leave) also must be executed very carefully in order to avoid against a claim of discrimination.
In the situation you describe, the employer had scheduled the employee’s reduction prior to any knowledge of military service. If this is the case, the employer would want any documentation it has of this fact, including any dated materials outlining the reduction as planned.
Any evidence the employer has documenting the fact that the reduction in force and the employee’s protected military service were unrelated would be crucial in defending against a claim of discrimination under USERRA and state military leave law.
Please be aware, however, that such documentation will not prevent an employee from making such a claim. As a result, many employers are very cautious when carrying out a reduction in force that involves employees on protected leave (or who are known to be planning protected leave).
In order to ensure that the employer’s documentation of the reduction is adequate, the employer may also wish to consult with legal counsel in order to review the full set of facts and the strength of both a potential lawsuit and the employer’s defense.