Can terminating a reservist for tardiness violate USERRA?


Issue:

Ted, a Navy reservist, has repeatedly failed to report for work on time— a job requirement. He received several verbal warnings and, finally, a written warning regarding this performance issue before taking a week off of work to fulfill his Navy reserve obligations. Two days after returning to work, Ted was fired for continually failing to report to work on time. Was his termination a violation of the Uniformed Services Employment and Reemployment Act (USERRA)?

Answer:    

No. Ted’s employer can avoid liability for discrimination under USERRA by proving that Ted’s termination was due to his tardiness rather than his reserve obligations. Ted’s employer will have to prove that it would have taken the same action regardless of his connection with the uniformed services.

An employer has violated USERRA if an employee’s or applicant’s past, present or future connection with the uniformed services is merely a motivating factor in an employer’s adverse employment action against the employee/applicant. Note that an employer is legally responsible for discrimination if the employee/applicant’s military service connection is just one of two or more reasons for its challenged action, unless the employer proves that any reason other than the service connection would have been sufficient to justify its action. Put another way, to avoid liability, the employer must prove that a reason other than the employee’s or applicant’s military status would have been sufficient to justify its action.

Source: CCH When Duty Calls: Military Leave and Veterans’ Rights.

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