USERRA and Just Cause

(from Maine Townsman, May 2005)
by Antoinette Mancusi, Technical Advisor, MMA

Beware, “just cause” disciplinary protections apply to returning armed service members.

With the recent return of Active Duty, National Guard and Reserve service members from Iraq and Afghanistan, public employers in Maine must be diligent in ensuring that the Uniformed Services Employment & Reemployment Rights Act (USERRA) a.k.a. military leave rights are being provided to returning personnel. (See HR Toolkit “Uniformed Services Employment & Reemployment Rights Act (USERRA)” on MMA’s website www.memun.org for a comprehensive review of this subject.)

One issue which public employers must be conscious of concerns the disciplining of such returning services members. USERRA provides special “just cause” disciplinary protections for returning service members. Generally, “just cause” protections are associated with a property interest in employment, which is normally created, by statute, charter, ordinance, personnel policy or employment contract (including a collective bargaining agreement). When a property interest exists, the official or employee is given a right to “due process,” i.e., notice and hearing rights before being seriously disciplined or terminated. In addition, employees with a property interest have another very important protection–“just cause” termination protection.

What is “just cause”? There is no one definition of “just cause.” However, courts have articulated key elements of “just cause” to include, dismissing an employee when his or her conduct “affects the employee’s ability and fitness to perform the duties of the position.” It is important to note that philosophical differences or personality conflicts alone would not generally constitute a legally sufficient basis for a finding of just cause. (See MMA’s HR Toolkit “Municipal Employee Discipline” for a comprehensive review of this subject.)

Although this writing stops short at saying that returning employees have obtained a property interest in their positions, this writing advises employers to tread very delicately in matters concerning the discipline of returning service members. The Uniformed Services Employment & Reemployment Rights Act (USERRA) provides in part (see 38 USC § 4316):

(c) A person who is reemployed by an employer under this chapter shall not be discharged from such employment, except for cause--

(1) within one year after the date of such reemployment, if the person’s period of service before the reemployment was more than 180 days; or

(2) within 180 days after the date of such reemployment, if the person’s period of service before the reemployment was more than 30 days but less than 181 days.
(Emphasize added)

As a result, depending on the length of a service member’s deployment, he or she may be covered by “just cause” protections from 180 days to one year. Although returning service members can be disciplined if necessary, employers will have to ensure that the above “just cause” factors are analyzed to ensure that “just cause” protections have been satisfied. As a side note, providing due process and just cause protections to all municipal employees is generally the preferred method of discipline even for positions without a property interest.

Because armed services involvement is traditionally high in several municipal departments, e.g., police officers and firefighters, municipal employers must be especially prepared to deal with USERRA compliance and this includes being prepared to deal with a host of emotional, psychological and physical issues that may accompany returning services members.

According to a February 6, 2004 letter from the Under Secretary for Health’s Information entitled, “Clinical Reminder Regarding Veterans of the Recent Conflicts in Afghanistan and Iraq, Operation Enduring Freedom” [those conflicts] have produced “…a new generation of war veterans who may be at increased risk of both medical and psychological illnesses due to complex deployment-related exposures.” The “Iraq War Clinician Guide,” 2nd Edition, written and compiled by the National Center for Post-Traumatic Stress Disorder (http://www.ncptsd.va.gov/war/guide/index.html) explains that veterans may face a variety of factors that may have a direct effect on their workplace performance:

Depending on a variety of factors, veterans may appear to be functioning at a reasonable level immediately upon their return home particularly given their relief at having survived the war-zone and returned to family and friends. However, as life circumstances change, symptoms of distress may increase to a level worthy of clinical intervention.

What this means for employers welcoming back their service member employees is that special care will have to be exhibited in assessing workplace behavioral and performance issues. Again, USERRA does not prohibit the necessary disciplining of returning service members, it simply protects them with “just cause” rights.

This would be a perfect time to ensure that Employee Assistance Program (EAP) information is readily disseminated and available for employees. Employers wishing to obtain more information about setting up EAP services, please contact Anne Wright in MMA’s Health Trust Department at 1-800-452-8786.