“But I had my doctor send you a fax last Thursday saying I wouldn’t be back at work until today,” bank teller Lawrence Tunnell told his supervisor, Greta Heinmiller. “How can you say I abandoned my job?”

“We never got any fax from your doctor,” Greta said. “And even if we had, a fax isn’t good enough.”

“Our absence policy requires you to call your direct supervisor – me, in this case – when you’re not able to come in as scheduled,” she went on. “You signed off on that policy.”

“But when I got home from my military service two weeks ago, with suspected pneumonia, I did call! I told you I couldn’t come in for an extra week!” Lawrence exclaimed.

A second call was needed
“I remember,” Greta replied. “But that doesn’t cover your further absence last week. You needed to call again, and you didn’t.”

“So what are you telling me?” Lawrence asked.

“That under our job abandonment policy, you abandoned your job by being absent for four days without notifying me,” Greta said. “And therefore, you terminated yourself. I’ll give you half an hour to get your things together.”

Reinstatement rights
“Now wait a gol-darned minute,” Lawrence retorted. “I have rights as a veteran. You can’t just fire me like that right after I come back from the service.”

“This has nothing to do with your military service,” Greta said, “and everything to do with a serious policy violation.”

“We’ll see about that,” Lawrence said. “You’ll be hearing from my lawyer.”

Lawrence sued the company for violating his right to reinstatement in his job under the Uniformed Services Employment and Reemployment Rights Act (USERRA).

Did he win?

The decision
No, Lawrence didn’t win. The federal courts dismissed his case.

USERRA does require that employers reinstate returning military service members at the conclusion of their service.
And it also bars employers from firing returning service members for 180 days after they come back – unless the termination is for cause.

To qualify as “for cause,” the termination must be reasonable, and the returning service member must know that engaging in the conduct at issue is grounds for termination.

In this case, supervisor Greta handled the situation perfectly.

She applied a policy whose violation was grounds for discipline up to and including termination. And she made sure Lawrence knew about the policy, by checking his personnel file and verifying that he had signed off on it.

Cite: To v. US Bancorp, No. 10-3237, 8th Cir.

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