A paranoid Acme leaves a veteran jobless

July 14, 2005
A call to duty leaves an Acme employee without a job when he returns. A lawsuit follows. How can you avoid this situation?

Aaron Baddidin, a second-generation U.S. citizen, in direct contrast to his siblings, is doing his best to embrace the societal norms of the country his grandparents adopted as their own so many years ago. That fact sometimes outrages his closely-knit extended family on both sides of the ocean. Aaron does everything expected of a good citizen. He’s been a weekend warrior in the Army National Guard since age 18; he felt it was the right thing to do. He lives with his wife and 2.5 children in the suburbs behind a white picket fence. He coaches Little League baseball and plays low-handicap golf. He’s an avid fisherman and hunter who hangs out at the local watering hole with his buddies after work on payday.

Armed with only a high school education, Aaron enrolls in at least one class each term at the local community college to explore directions he might take his career in search of a better job and higher income. But, at age 27, he still hasn’t collected enough credits in any single discipline to qualify for a degree. Not to worry. It’s the land of opportunity, don’t you know. And Aaron found a dandy one at Acme.

He accepted a maintenance technician job at Acme three years ago. It didn’t require a formal degree for Aaron to realize that having a knack for computers and sophisticated software can be a perfectly valid route to the Great American Dream. He’s fascinated by the high-tech diagnostic gizmos that produce the measurable, sometimes significant, monetary gains predictive maintenance promises -- and he especially likes that he doesn’t have to pay for the expensive toys he gets to use each day.

Life was good until Aaron’s Guard unit was called to active duty in Iraq. That news generated more than a bit of personal angst, and it raised certain intergenerational familial conflicts. He knew that the duties he’d be expected to perform overseas were inconsistent with his personal credo regarding the dignity of human life, especially in a location so close to his grandfather’s homeland.

Two weeks before he was to leave, Aaron gave Eddie Corrant, Acme’s maintenance manager, two-week notice about this involuntary call-up that would require him to be gone for an 18-month tour of duty with his unit. Aaron assured Eddie that he’d be back, God willing, after the U.S. military no longer had need of his services.

To fill the techno-gap his departure caused in the maintenance department, Acme engaged the services of an independent predictive maintenance consultant, a downsized engineer from somewhere out East, who now ran a one-man organization. It didn’t hurt that this engineer was also the plant manager’s brother-in-law.

Aaron was fortunate during his sojourn in the Middle East, where he deployed high-tech weaponry, smart bombs and sundry smaller munitions. His Guard unit returned from the Middle East after only 15 months. Several of his comrades in arms were severely incapacitated. A few never would be coming home. Aaron suffered only a leg wound that left him with a pronounced limp.

After a week getting reacquainted with his family and community, he returned to Acme, triumphantly waving his honorable discharge papers, only to discover that his key card no longer worked. He called security, and a guard arrived at once -- not to let him in, but to escort him to the HR department. The reason, the guard explained, was that after the bomb threat last winter, employee key cards now expire automatically if they haven’t been used for two consecutive days. Aaron would need a new one. Elsa Norcassel, the HR director, met them in the HR lobby and directed Aaron to a small conference room.

After preliminary chit-chat about his recent exploits, Elsa launched into an obviously canned explanation of the measures the plant had adopted to deter industrial terrorism in response to the bomb threat. The biggest surprise was that Aaron would need to reapply for his old job. Elsa explained that this policy applies to anyone who takes an extended leave of absence -- and this one lasted more than a year. Aaron was shocked and argued that the rule made no sense, citing the training he received on ultra-high-tech electronics during his stint with the military. That training, he insisted, only enhanced his qualifications and provides Acme’s maintenance department with more of the unique skills it needs to be competitive in the future.

When asked about other secret hurdles he might have to leap to get his old job back, Elsa told Aaron about the 90-day probationary period and the waiting period for getting reenrolled in the 401(k) plan. She also mentioned the waiting period for health coverage, and noted that coverage might even be denied because the leg wound probably constitutes a preexisting condition.

Aaron realized, in more ways than one, that he wasn’t going to be waltzing back into his old job. He mumbled something about hoping his service will bridge. Elsa merely shrugged and handed him a pen and a job application. He filled out the paperwork and went home.

When he hadn’t heard from Elsa in more than two weeks, Aaron limped into the old watering hole on the next payday to see what was hanging on the Acme grapevine. There, he learned he probably wouldn’t be getting rehired. His friends reported various rumors. Aaron knows about guns and could be a potential danger to others. Aaron knows how to construct bombs and it’s way too risky to have him around. Aaron won’t be able to unseat the old guy who replaced him. Aaron’s bum leg will limit his ability to climb around equipment in search of incipient mechanical failures. The list went on.

The next day, Aaron paid a visit one of his good golf buddies, the premier labor attorney in these parts, to see what could be done about this indignity and injustice.

What could Aaron or Acme have done differently to prevent this situation from arising? Does homeland security give a plant carte blanche authority to batten down the hatches? Is Acme obligated to reinstate Aaron? If so, what about his seniority? Does his leg make him damaged goods? Should Aaron seek retraining through the GI Bill? Should he fight for his job or seek employment elsewhere?

An attorney says:

Acme really blew it this time. While the company’s motivation for not rehiring Aaron isn’t clear, the facts present Aaron with two potential claims, one of which is a clear winner for him and a potential catastrophe for Acme.

The federal law that provides servicemen and women with job protection following military service is the Uniformed Services Employment and Reemployment Rights Act (USERRA). At the outset, USERRA requires an employer to reinstate a returning serviceman into the same position he would have held had he remained employed unless the employer can demonstrate that the returning employee is not qualified for that position. If an employee can’t perform his old job because of a disability, the employer must provide him with a reasonable accommodation so he can perform in that position or in the most equivalent position in terms of seniority, status and pay.

In addition to the reinstatement rights, an employer can’t impose a probationary period on a returning serviceman. The veteran also is entitled to job protection for one year during which time he can’t be discharged without cause.

With respect to employee benefits, a returning veteran is entitled to reinstatement of the health care coverage that he had before military service with no waiting period or any exclusion for a preexisting condition.

But Aaron has one more arrow in his quiver. If Acme failed to reinstate him because of his leg injury, he might have a claim under the Americans with Disabilities Act for discrimination on the basis of either an actual or a perceived disability.

Perhaps if Acme has adhered to the USERRA requirement that employers post a notice of employee rights under the act, Elsa Norcassel would have read that notice and put Aaron back to work where he belonged.

Julie Badel, partner
Epstein Becker & Green, P.C.
(312) 499-1418
[email protected]

A corporate consultant says:

Resolving this particular case really does seem to rely exclusively on employment law, about which I've no expertise. So I'll confine my comment to how this case may have been avoided.

First, one of HR's responsibilities is to ensure that Acme doesn't engage in litigious behavior. As soon as the U.S. began sending troops overseas, Elsa should have written a policy regarding the reintegration of returning veterans, had legal counsel review it, and secured the necessary internal approvals.

Next, Elsa's overall attitude toward Aaron was at best, cold and distant, and at worst, apathetic and unprofessional. Shrugging off his concerns? Not responding for weeks? What a poor example of what HR professionals are supposed to represent.

Another way in which this case might have been avoided would have been for Acme to have had some form of "thank you and welcome home" for their wounded veteran. Those of us who military personnel protect are inexcusably aloof about the horrific circumstances in which they serve, about the wrenching sacrifices they make on our behalf, and about the type and severity of the scars they bring home -- if they come home. Acme should be ashamed to have been so blasé about Aaron's physical return.

As to Acme's new procedures, Aaron should have to jump through every security hoop that anyone else would have to jump through -- maybe even tougher ones based on his expertise -- but while adhering to these new safety precautions, Acme could have served as Aaron's advocate, working arduously and conspicuously to expedite the process, to help him regain a productive life, and to reinstate his employment status within the confines of the new security procedures. Instead, they treated him as they would a stranger walking in off the street, rather than as the wounded veteran whose sacrifices helped maintain their freedom.

Francie Dalton
Dalton Alliances Inc.
(410) 715-0484
[email protected]

An academician says:

Oops! Here we go again. I think I’ll become an attorney. As long as Acme stays in business, I should have plenty of work.

The law (USERRA) covering returning veterans is pretty clear and has been publicized widely. I don’t know how, but apparently Acme somehow missed it. Employees who are called up for military service must provide notice to the employer, which Aaron did, and also must notify the employer of their intent to resume their job “in a timely fashion” (usually 30 days) once they return -- which, again, Aaron did.

Aaron could have been on active duty for up to five years (it was only 15 months) and Acme would have been obligated to find a job for him on his return. And on return, the law states that Aaron should have received prompt reinstatement, with “prompt” meaning a matter of days. Also, he is entitled to accrued seniority, including status, rate of pay and pension benefits. In addition, he should be given training or retraining if needed. Acme blew all of that.

What should Acme have done? For starters, fire the HR director and probably most of her staff. Rule #1 of good management is to put together a management team that is competent, makes good decisions and can execute. The current HR people don’t seem to know what’s what on veteran’s law. I don’t know how the homeland security stuff got into the equation, but it has nothing to do with Aaron -- sounds like another case of HR illiteracy. As the next step, hire someone who knows what they’re doing in HR to assemble a competent staff.

What should Acme do now? Hire Aaron immediately and give him his seniority and retraining and whatever the law requires. What should Aaron do? Sue! The law is clearly on his side.

Professor Homer H. Johnson, Ph.D.
Loyola University Chicago
(312) 915-6682
[email protected]

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