Of the vast edifice of federal laws that now control the terms of private employment, one of the less discussed is a 1994 enactment called the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), under which employees who participate in the military are made a protected class in private employment. Writes Jon Hyman: “An individual claiming discrimination under USERRA need only prove that military service was a ‘motivating factor’ in the adverse action — which may rely on circumstantial evidence (including suspicious timing, statements, or behavior) that creates a ‘convincing mosaic’ from which a reasonable jury could infer discriminatory motive.”
Hyman discusses the recent case of Arroyo v. Volvo Group North America, in which managers expressed admiration but also “frustration” at an employee’s resort to “frequent military leave” in situations where, they believed, her army reserve obligations would have been consistent with taking less time off the job. Eventually it dismissed her on attendance grounds.
Last month the Seventh Circuit overturned a lower court’s dismissal of the case, citing, as “anti-military animus,” managers’ concerns about what they perceived as her overuse of the leave, and its disruptive effects on work. “Animus” as a word here, of course, hardly carries the connotation of prejudice, spite, or hostility that frequently attach to that word. It is more like an confusing leftover from the days when federal employment law made it its chief business to prohibit invidious discrimination, rather than, as now, to enforce affirmative accommodation.
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At the risk of showing my biases, it seems to me the federal government has a much greater interest in protecting the (private) employment of serving military members/Reservists/National Guard members than many other protected classes, because there is a direct impact on the federal government’s ability to carry out Constitutionally-mandated duties in the absence of such protections. As a comparison, 28 U.S.C. §1875 protects federal jury members from being penalized for serving on the federal jury, which also has a direct impact on the ability of federal district courts to fill juries and perform the work of the judiciary. The Arroyo case hardly seems like a sympathetic fact pattern for the employer, given that one of their complaints was her lack of contact with them regarding her status while deployed to Baghdad, forced her to transfer to a more local unit, then were unhappy when she was activated with her new unit. As the Seventh Circuit pointed out:
“The emails expressing management’s frustration often transitioned directly to a discussion about disciplining Arroyo under the local attendance policy for her tardiness and absences. In the end, she was not disciplined directly for her military leave. But she was disciplined for other instances of tardiness, often of a relatively minor nature — one or only a few minutes late. A jury could infer from the evidence that Arroyo’s punishment for such infractions was actually motivated by her supervisors’ long-standing frustration about her frequent absences.”
It’s hard to see how anyone could maintain a Reservist or National Guard position if they could be fired at will by an employer because of required drill, training, or deployments. It’s also worth pointing out that some of the protections codified in USERRA have been part of federal law since at least World War II in modified forms.
Hear, hear.
Your choices are 1) no army or one that cannot meet our military goals; 2) a huge standing army; or 3) a smaller standing army with huge reserves. Reserves, almost by definition, will have a civilian responsibility in society. And society must hold individual employers responsible for supporting the system.
What small businessperson in their right mind would hire someone who got 2 weeks of unpaid leave off once a year and who might be gone for months or years at a time? Without USERRA, the only option for servicemembers would be self-employment or employment with a large company.
I truly wonder what the libertarian position on this is, especially a libertarian who believes that the US needs a large military to protect its national interest.
In my previous life, I hired people who were active duty (for part time positions) and reservists. So the answer to “what small business would hire someone….” is “any small business that is looking for a person who has leadership skills and a sense of duty.”
The problem that I see in this case is not that the woman was in the military, but that she was using the military and other laws (ADA and discrimination laws) to get away with things others could not.
Her being late repeatedly had nothing to do with her military service. Her repeated refusal to address her actions is the real issue here.
Frankly,. Volvo took the wrong steps in dealing with this woman. While they tried to comply with civilian law, a simple call to her CO or staff sergeant telling them that they tried to be supportive and done everything within their power but her repeated tardiness was causing problems within the plant and not reflecting well on the military.
I guarantee they would have taken care of it.
I’m not sure the court would agree with you that her military service had nothing to do with the tardiness issues (which, as the court notes, included being written up four times for being one minute late), particularly in light of Volvo’s documented reluctance to grant the required travel time to and from drill plus an eight-hour rest period after drill training.
Also, keep in mind the procedural posture here. The Seventh Circuit overturned a grant of summary judgment in favor of Volvo, holding that a reasonable factfinder could determine that Volvo would not have fired her even in the absence of her military status. A jury can still reject her claims as a factual matter, or decide that her military status had nothing to do with her tardiness or with Volvo’s actions. The record as presented by the Seventh Circuit is far from undisputed on that point, however.
1) The granting of the 8 hours time was a complaint that was resolved. Volvo corrected their stance and I don’t see that as being relevant or else they would have pushed her out the door sooner. Remember that the write ups were not even correctly counted and tabulated. If they were out to get her, wouldn’t they have keep a stricter eye on things like that?
2) While the write ups seem to be petty, it is not as if she was coming to work and being late. If you read the decision, she was in the building and coming from her meditation area that Volvo had set up for her. Most people will say that there are situations where being late because of traffic, kids, car breaking down etc is a mark against you, but doesn’t really matter.. But if you are in the building and clocking in late, that is a totally different slap in the face to the job.
From what I read, it seems to me that the bosses were upset that she was on military duty. She has a pretty good case that their complaints about her absences and tardiness were a pretext for firing a veteran.
Sort of like having KKK materials in the office and then saying that you don’t discriminate against minorities. Sure, the materials do not prove discrimination, but they sure raise some eyebrows.
One further thing. . . I don’t put it past soldiers to try to game the system. However, USERRA does not have equitable remedies, so the cleanliness of hands is not terribly relevant.
From what I read, the bosses were upset with her inability to communicate with them as well as learning the regulations for dealing with Reservists. The one thing that is missing from the record is the time span of those emails. She was employed by Volvo for quite some time so asking questions concerning the situation of a problematic employee over the course of years is nothing.
A big violator of USERRA—the federal government. One of the biggest disgraces of the Holder DOJ–not protecting the rights of federal government employees called to active duty or reserve training. DOJ did next to nothing, but that didn’t stop the execrable DOJ spokeswoman from stating that DOJ was doing all it could.
Disgraceful.
I agree that reservists should be protected in their civilian careers, but should the onus be entirely on the employer? The Federal government could compensate employers who bear an unusually heavy burden from reservist absences, or who give a chance to returning reservists who need extra training to get back up to speed. Putting all the burden on employers can lead some to find covert ways to hire fewer reservists in the first place.
Sure. Let’s have a special tax for any business who does not employee someone in the ready reserve.