Ailing Military Reservist Unlawfully Denied Reinstatement

By Scott M. Wich Mar 8, 2017

​Quick decisions on employment issues are sometimes necessary. Making such decisions without the full facts, however, can result in significant legal liability. A recent case heard by the 5th U.S. Circuit Court of Appeals in which the employer decided to terminate a military reservist without gathering all the facts proved costly.

Jose Luis Hernandez was an employee of Results Staffing Inc., a staffing company that provides day workers for unskilled labor positions. Hernandez was also a member of the U.S. Army Reserves. On Tuesday, July 9, 2013, Hernandez notified his employer that he needed time off on Friday, July 12, to travel to his weekend military training. Results allowed the time off and notified Hernandez of an important meeting he needed to attend on Monday, July 15.

On Sunday, July 14, while Hernandez was still at military training, he called his supervisor, Don Thompson, to discuss the Monday morning meeting. Thompson told Hernandez that the meeting was to start at 5 a.m. and gave him the location. Following this call, Hernandez sought medical attention from a military medical staff member for a drill-related injury. He received treatment and a prescription for the injury.

On Monday, July 15, Hernandez overslept and missed the 5 a.m. meeting. When he awoke, he was in severe pain and was transported to a hospital emergency room. While in the hospital, Hernandez informed Thompson via text message of his condition and inability to report to work. The hospital prescribed additional medication for the injury, and Hernandez was released. He returned home and rested for the remainder of the day.

[SHRM members-only toolkit: Managing Military Leave and Military Family Leave]

On Tuesday, July 16, Hernandez reported to work. He was advised by Results' HR manager that he was terminated for a violation of the company's no-call, no-show policy, which required employees to call in four hours before start time if they were unable to report to work.

Hernandez sued Results under the Uniformed Services Employment and Reemployment Rights Act (USERRA), asserting that he was unlawfully denied re-employment. A federal district court found in favor of Results because Hernandez did not report to work as scheduled on Monday, July 15. The federal appeals court reversed and granted judgment in favor of Hernandez.

The appeals court relied on USERRA's protections governing convalescence. Generally, an employee is required to report to work after the conclusion of military service. However, such reporting periods are extended for a person who is "hospitalized for, or convalescing from, an illness or injury incurred in, or aggravated during, the performance of service in the uniformed services." In such instances, an employee need not report to work until the end of the period needed to recover from the injury or illness.

The appeals court found it undisputed that Hernandez's injury was related to his military service. The medical care he received, together with a doctor's note clearing him for a return to work on Tuesday, July 16, made clear to the court that he was convalescing on July 15. As he reported to work at the conclusion of his convalescence, the appeals court ruled that Results acted unlawfully under USERRA in denying his re-employment.

Hernandez v. Results Staffing Inc., 5th Cir., No. 15-10602 (Jan. 30, 2017).

Professional Pointer: Had Results inquired into the reason for the delayed return to work, it may have reached a different decision concerning re-employment. Quick employment decisions, at the expense of adequate investigation, can lead to significant legal liability.

Scott M. Wich is an attorney with the law firm of Clifton Budd & DeMaria, LLP in New York City.

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