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Most employers know that it is not smart to pick on an employee returning from serving a tour of duty in the uniformed services. In fact, a few years ago, if you asked most employers, they would agree that returning servicemen and women should be treated fairly when they return to the workplace. This sentiment worked fine, as long as most servicemen and women were career military personnel. However, now, more than ever before, the servicemen and women being called back to service are “citizen soldiers,” not career military personnel. Many of these servicemen and women have regular civilian jobs, which they expect to return to without complication. But, for the first time in many years, the tour of duty for these citizen soldiers is being stretched to cover the fight against terrorism, and to protect and defend this country at home and abroad. As one might expect, this extension of tours of duty can cause problems for employers, as well as the returning servicemen and women. More importantly, recent litigation suggests that many employers may not know that a federal statute, The Uniformed Services Employment and Reemployment Rights Act, protects the jobs of returning servicemen and women. THE HEART OF USERRA Unlike many anti-discrimination statutes, USERRA does not care whether the employer intended to discriminate against the returning serviceman, when denying the employee re-instatement. This act was intended to protect veterans or returning servicemen from even unintentional violations. Ignorance of the law is no defense. USERRA seeks to ensure that returning servicepersons retain their civilian employment benefits, and prohibits discrimination against employees because of their military service. USERRA is also intended to encourage non-career service in the uniformed services by minimizing the impact to their civilian career caused by their military service. The uniformed services referred to in USERRA includes all of the U.S. Armed Services, Coast Guard, Army National Guard, Air National Guard, and the commissioned corps of the Public Health Service. Unfortunately, it is not always easy for employers to know when they are running afoul of USERRA. What do you do if the returning employee cannot physically perform his old job? What if the employee no longer has the skills required for the position? What is an employer required to do if it recently purchased the old company that the returning serviceperson worked for, and has no position in which to place the returning serviceperson? It may be a surprise to learn that USERRA requires employers, in many instances, to retrain returning servicepersons/employees who may not have the skills they need to perform their former jobs. In addition, under USERRA, a company who purchases another company, may be considered a “successor in interest” with obligations to reemploy returning servicepersons who were employed by the former company. Failure to understand these rules can create liabilities for employers under the act. Since Sept. 11, 2001, one out of every 74 servicepersons has filed a complaint under USERRA, according to the August 18, 2004 edition of The Daily Labor Report. In addition, The Daily Labor Report says the Department of Labor has expressed concerns regarding the increase in the number of complaints. THE BIG DEAL Even large companies can find USERRA confusing. In Warren v. International Business Machines Corp., 03 Civ. 3340, a recent case from the State of New York, the company hired Michael Warren knowing that he was a master sergeant in the Army Reserve. Everything appeared to go well for Warren at IBM until his military duties increased following Sept. 11, 2001. Members of the Reserve generally participate in drills one weekend a month and in annual training between 14 and 21 days a year. Since 2000, Warren had been part of a training battalion based in Louisiana that trained soldiers to be military police officers. Warren was working on a very lucrative deal for IBM’s Global Security Group. In 1999 and 2000, Warren participated in annual training but did not serve any additional duty. In 2001 he served a mission of about 21 days and attended annual military training for an additional 21 days. After Sept. 11, 2001, one of Warren’s supervisors became aware that Warren might be called for additional service, because of his membership in the Reserve. Warren and his immediate supervisor had about 15 to 20 conversations in 2001 regarding his service in the Reserve. Understandably, the supervisor asked Warren frequently to explain whether he would be called to duty in the Reserves. In 2002, Warren completed annual training for about 19-21 days, and then participated in an unplanned “pop-up” mission, in which he trained soldiers for another 25 days. Prior to leaving for the “pop-up” mission, Warren knew that the IBM deal was at a critical point, and informed his supervisor that they needed to start thinking about a replacement for Warren’s position on the team, in case he got called away for a military mission. According to Warren, his supervisor said: “You are killing me, you know. I don’t have the resource to hire anybody. We don’t have the budget.” Warren also claimed that his supervisor asked him if he had to go on the “pop-up” mission and whether it was a requirement of Reserve service. Other supervisors asked Warren if he could get out of his service, and according to Warren, expressed frustration at his prospective absence due to military duty. The day before he left on the “pop-up” mission, Warren attempted to contact another IBM employee based in the United Kingdom. Unable to reach her via telephone, Warren allegedly left a telephone message in which he threatened to “hunt his colleague down and kill her.” He also stated that he would try to get back to her in a few minutes. According to the court’s opinion, it appeared that Warren was joking. The coworker stated that she did not feel threatened by the comment, but thought that it was inappropriate. She mentioned the comment to her supervisor in the United Kingdom but she did not think she would have problems working with Warren when he returned. The company conducted an investigation, allegedly without talking to the coworker who received the “threat,” and decided to terminate Warren for violating the company’s zero tolerance anti-violence policy. He was terminated soon after he returned from military service. Warren filed suit under USERRA and other similar state statutes. Early this month, Warren was able to defeat the company’s attempts to dismiss his claims because there was evidence that the company was frustrated that Warren would be absent before the IBM deal was concluded due to his military service. The court looked at the following facts as evidence that his supervisors and other members of the IBM deal team were seemingly unhappy about his absences: (1) they questioned him frequently about his Reserve service and the possibility he could be called for additional service or even to active status; (2) one of his supervisors said that Warren’s absence was “killing” him, citing the budgetary impact of Warren’s absences and the unavailability of funding to hire a replacement; and (3) another senior manager asked Warren to try to get out of the “pop-up” mission, and Warren indeed asked to be relieved from half of the mission. The court also held that a jury could reasonably find that IBM’s basis for discharging Warren was a pretext to cover up the company’s discriminatory intent. The court further reasoned that a reasonable jury could find that Warren was joking when he left the voicemail for his co-worker and that discharging an employee with an excellent eight-year employment record was exceedingly, and irrationally, harsh. It is easy to understand the company’s concerns about completing the big deal, its budget and payroll concerns and their need for information from an employee who might be called away at any time. Likewise, it is not difficult to imagine the pressure Warren felt when having to repeatedly explain his Reservist duty to supervisors who seemed frustrated at the prospect of his being absent. However, USERRA expects employers to know and understand their obligations under the statute. In fact, any supervisor with the authority to hire and fire employees can be held personally liable if they violate the anti-discrimination provisions of the act. Therefore, it is important for companies to provide training to their supervisors regarding this statute. It is also important to show that the company does not have a problem with absences covered by USERRA by posting the company’s military leave policy, or including it in the employee handbook. Victoria M. Phipps is a partner in the labor and employment practice of the Houston office of Epstein Becker Green Wickliff & Hall. She has been board certified by the Texas Board of Legal Specialization since 1995.

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