A U.S. appeals court has ordered a Nashville, Tenn., police department to reinstate a soldier's job that he left for active duty in Kuwait, in a case affirming the fixed nature of re-employment rights for persons returning from military service.
An Army reservist left his job as a police officer in November 2003 for active duty overseas. While overseas he faced disciplinary proceedings for making homemade wine and sharing it with other soldiers. Petty was arraigned, but the charges were eventually dropped. In January 2005, Petty received an honorable discharge. When Petty tried to return to his job as a police officer, the department delayed his rehiring during a three-week “return-to-work” process (a mandatory set of tests, evaluations and questions designed to determine if a returning soldier is able and ready to serve in a police force - a process that was . Alleging that he had lied about the alcohol charges, the department launched its own investigation into the military's charges. During the investigation Petty was asked to sit at a desk answering phones and taking police reports. Indeed, years later (during the litigation), the City maintains that pending the outcome of its on-going investigation, Petty may be unqualified.
The Court found that Petty's reemployment rights were violated on two bases. First, it found the "return to work" process violated USERRA. The Court specifically noted that the City's well-intended policy of testing to ensure that individuals entrusted with the protection of the public are temperamentally and emotionally ready to work, violated USERRA's reemployment rights. Although not in and of itself a determinative factor, it was of note that this "return to work" period was unpaid - which also resulted in a denial of a benefit of pay under USERRA.
The Court also found that it was not for the City (i.e., an employer) to launch its own investigation into the nature of a returning veteran's conduct in the service. Otherwise stated, an employer cannot substitute its own judgment for that of the military.
Reinstatement rights under USERRA are intentionally rigid and always construed in favor of the returning service member. Prompt reinstatement to the employee's escalator position is mandatory absent very narrow (and difficult to establish) exceptions.
Thanks to David Greenspan in our Tysons office for this input.