Employees who serve in  military are protected
Published 06/17/05

Federal law protects military reservist's jobs upon returning from military duty. Particularly the Uniform Services Employment and Reemployment Rights Act of 1994 ("USERRA)") Section 4312 provides that members of the armed forces or reservists who properly notify employers of their need to take a military service-related absence; who take a cumulative absence of no more than five years; and who properly reapply or report to work are entitled to reemployment.

Section 4313 (a)(2)(A) of USERRA further provides that a person entitled to such reemployment shall be reemployed in the position of employment in which he or she would have been employed if not for the military service or a position of like seniority, status and pay, the duties of which he or she is qualified to perform.

A recent federal court case of Duarte v. Agilent Technologies, Inc. out of Colorado cited on March 31, 2005 awarded the reservist employee $383,761 in lost and prospective wages for the employer's firing him after he returned from military duty.

The Court found that Joseph Steve Duarte, a compensation designer for the high tech manufacturer Agilent who also served as an officer in Marine Corp Reserve, was called to active duty for seven months early in the war on terrorism from October of 2001 to until April of 2002 thereafter returning to his $88,800 a year position for just seven more months he was called up for a second tour of duty from November 2002 to until July of 2003.

Agilent meanwhile faced serious financial difficulties and reduced its work force from 41,000 to 29,000 over two years. After the cutting of jobs the company began then turning a profit, although Duarte 's department still had to cut $700,000 in annual operating costs. When Duarte returned from his second tour of duty, his new supervisor placed him on a less demanding temporary project rather than restore his original job in the middle of the compensation design cycle.

Before the next cycle began Duarte was placed into the work force reduction program which assessed all five compensation designer and rated Duarte at the near bottom. Duarte was thereafter terminated as of November 17, 2003. The Court found that Duarte was seriously disadvantaged by his diminished status and responsibilities assigned to him upon his return. While the Court awarded the lost and prospective wages noted above, it did not award punitive damages finding the employer's mistaken actions were based on an exercise of business judgment in response to it financial hardship.

USERRA requires in general that the employer must reinstate reservists to the positions they would have held if they had not taken military leave, even if they have to fire somebody to reinstate the reservist and must train or otherwise help the reservist to qualify for reinstatement. The main exception to these employer obligations is if its circumstances have changed so much that job restoration is impossible or unreasonable.

In Duarte's case, reinstatement to his former or an equal job position was not impossible just inconvenient given the stage of the compensation design cycle. Agilent instead assigned Duarte to a temporary project, made no effort to retrain him, and did not restore him to his original job when the new design cycle began. Nevertheless, Agilent assessed the officer's performance as if he had been working as a compensation designer for the same period as the other designers, thereby placing at a substantial disadvantage.

The law further required Agilent to have cause to fire Duarte within one year after reinstatement. Courts have found that an employer's financial hardship, if severe enough, can justify termination under the law, and further rules proposed by the U.S. Department of Labor also recognized that inefficient or incompetent job performance can also be cause to fire reservists. In the Duarte case, the Court found that Agilent failed to prove such cause and the result was the substantial Court monetary award in favor of Duarte .

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.