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In order to ensure that individuals remain physically, emotionally and temperamentally qualified to be a police officer after a break in service, a municipal police department has a return-to-work policy for officers who have been away from the department for an extended period of time, regardless of the reason for their separation. The process includes a personal history update questionnaire, a medical examination, a computer voice stress analysis, a drug screening and a debriefing with a police department psychologist. Returning officers must also execute a medical records authorization and those officers returning from the military must execute an authorization to obtain military records.
Brian left his job as a police officer to serve on active duty with the United States Army and seeks reemployment upon his return from duty approximately one year later. While in Kuwait, Brian was charged with violation of a lawful order and conduct unbecoming of an officer for possessing alcohol in his tent. In lieu of a court martial, Brian resigned his commission and was given a discharge under honorable conditions. The police department suspects that Brian has been less than candid in disclosing his military record and believes that his dishonesty may render him unqualified to return to his position as a police officer. Can Brian’s reemployment be delayed while the police department investigates?
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Answer: |
No. In a case out of Tennessee, the US Court of Appeals for the Sixth Circuit held that a police department’s attempt, through its return-to-work process, to impose prerequisites beyond those outlined in the Uniformed Services Employment and Reemployment Rights Act (USERRA) was impermissible. That process, including any alleged dishonesty therein, could not serve as the basis for delaying or otherwise limiting the right to reemployment, the court said.
It was of no consequence that the police department believed it was obligated to ensure that officers remain qualified after an extended absence. “In USERRA,” the court wrote, “Congress clearly expressed its view that a returning veteran’s reemployment rights take precedence over such concerns.” Here, the department questioned only whether the returning veteran’s conduct during his military service would disqualify him from returning to service in the police department. But, the court said, Congress has made it clear that service classified as “under honorable conditions” suffices to qualify an individual for USERRA benefits.
Cite: Petty v. Metropolitan Government of Nashville-Davidson County (6thCir 2008) 2008 U.S. App. LEXIS 17549.
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