Re-Employment Rights And USERRA

By James Denis

Oct. 14, 2008

Brian Petty worked as a police sergeant, supervising patrol officers, for the Metropolitan Government of Nashville, Tennessee, known as Metro. When Petty was called to active duty in 2003 with the U.S. Army and stationed in Kuwait, he was accused of manufacturing and offering wine to other soldiers. The Army dismissed charges against Petty in exchange for his resignation, and he was discharged “under honorable conditions.”

When Petty requested reinstatement to his job, Metro required Petty to complete a questionnaire about whether he had been charged in any military disciplinary proceeding. Petty admitted charges had been made against him, but he did not disclose the substance of those charges. Believing Petty was concealing information, Metro refused to reinstate him to his former position, but assigned him to work in an office position for the police department with significantly fewer responsibilities than his former position.

Petty sued Metro in the U.S. District Court for the Middle District of Tennessee under the Uniformed Services Employment and Reemployment Rights Act, alleging that Metro unlawfully delayed his re-employment, failed to restore him to his full patrol sergeant’s job and discriminated against him based on his military service. The district court dismissed the lawsuit in favor of Metro, and Petty appealed.

The U.S. Court of Appeals for the 6th Circuit reversed, holding that USERRA prohibits an employer’s adoption of a “policy, plan or practice” that creates additional prerequisites to a service member’s statutory right to re-employment. Petty’s failure to provide the separation papers he had received from the military, which were “statutorily unnecessary,” did not prevent Petty from exercising his right to re-employment. Petty v. Metro. Gov’t of Nashville & Davidson County, 6th Cir., No. 07-5649 (8/18/08).

Impact: Protections under USERRA extend to employees who have left military service under “honorable conditions,” make a timely request for reinstatement and provide the employer with a signed authorization allowing access to the employee’s military and medical records.

Workforce Management, October 6, 2008, p. 11 — Subscribe Now!

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