A few weeks ago, the Sixth Circuit handed the Metropolitan Nashville-Davidson County ("Nashville") a major defeat in a rather unusual case involving a soldier who returned from military leave.
The facts are important to understanding Nashville's argument but they are not simple to follow. Sergeant Petty worked as a Nashville police officer and member of the Army Reserve for years before being called to active duty in 2003. He ultimately transferred to Kuwait where he work in the supply stores. During an inspection, a still (he was from Tennessee, after all) was discovered and that ultimately led to Sergeant Petty with violating orders (against making or possessing alcohol) and conduct unbecoming an officer. In early 2005, asked to resign “for the good of the service,” and all charged against him were dropped and his discharge was characterized officially as “under honorable conditions (general)."
Petty asked to return to work on February 28, 2005, and Nashville began implementing its return to work process which is supposed to "ensure that every individual entrusted with the responsibility of being a Metropolitan Police Officer is still physically, emotionally, and temperamentally qualified to be a police officer after having being absent from the Department." During this process, Petty admitted some (but not all) of the details surrounding his arrest and when he was returned to work, Nashville launched an investigation into whether he was truthful in his return to work processing but ultimately concluded the allegation was unfounded and closed the investigation.
It didn't end there because Nashville continued to examine the reasons for Petty's discharge, ultimately learning that he had resigned in lieu of court-martial and had not disclosed this on his return to work application. Petty was then assigned to answering phone calls from the public, which is considered demeaning work, apparently.
In holding Nashville violated Petty's return to work rights under USERRA, the Sixth Circuit focused narrowly on whether Petty had provided the relevant form even if he didn't provide all of the relevant form. The information Petty omitted was not required, the court reasoned, as the only criteria that mattered under the statute was whether or not Petty had been discharged from military service under "honorable conditions." Once that question was answered, nothing else mattered, the court said, and Nashville "was not permitted to delay or otherwise limit Petty’s reemployment rights in any way" including by requiring Petty to "comply with its return-to-work process." Nashville had no right to ensure that returning officers were qualified to return to work because Congress decided returning veterans rights took precedence over Nashville's policies (it is this point on which Nashville has asked the court to reconsider its decision). The only qualification an employer may examine is a physical one; qualifications based upon whether the veterans conduct during military service are not permitted short of examining whether the discharge was under honorable conditions.
Piling it on, Nashville, the court said, had no reason to conduct a second "investigation" because it was "spawned" by the first invalid refusal to permit Petty to return to work. Nashville's choice, the court intimated, was to reinstate and then determine whether or not Petty was qualified, discharging him if necessary and consistent with the other USERRA provisions that prohibit discrimination against employees for taking military leave.
The final blow was the court saying Nashville had discriminated against Petty by refusing to permit him to work "side" jobs because he was under investigation. That was a benefit to which Petty was entitled and the fact that Nashville was conducting an invalid investigation meant that its denial on that basis was also invalid.
Employees returning from military leave must be promptly (within 2 weeks at most) reinstated. Doubts about the employee's non-physical ability to meet the current job qualification requirements must be resolved as part of the normal work rule processes and may not delay reinstatement.
If upheld, the decision presents a stark lesson for employers and illustrates some of the thorny issues posed by USERRA. But for his military leave, Nashville would have been entirly justified in refusing to hire or rehire Petty because of his legal difficulties in Kuwait (or Kentucky, for that matter). So the fact that the legal difficulties occurred on military leave required, the court unmistakably held, Nashville to ignore them, even if they raised genuine concerns about the returning employee's dishonesty.
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