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Ask the Lawyer: Employer cites ‘abandonment,' denies reservist re-employment

Jul. 21, 2011 - 02:56PM   |   Last Updated: Jul. 21, 2011 - 02:56PM  |  
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Lawyer Mathew B. Tully answers your questions.

Q. I'm a reservist on active duty. My employer accused me of abandoning my civilian career for the military. Is that legal?

A. In rare cases, service members can waive their re-employment rights under the Uniformed Services Employment and Reemployment Rights Act by abandoning their civilian jobs.

So they must be careful about what they say to employers about their plans for military service. They must also be aware that actions sometimes can speak louder than words, and excessive service could, at a certain point, constitute abandonment.

This can quickly become a he said/she said affair. Such was the case with Richard Erickson, an Army Special Forces sergeant major who lost his job at the U.S. Postal Service after management used circumstantial evidence to support an abandonment claim. Erickson, whom I represented in his USERRA case, served extensively with the Army National Guard in the nine years before his termination at the USPS in March 2000.

Earlier that year, he had told a USPS labor relations specialist that he liked the military and intended to stay in until his orders expired, and that he did not like the way the USPS treated him.

Construing these comments, and the amount of time he spent serving in the military, to represent his abandonment of his civilian career and waiver of his USERRA re-employment rights, the USPS terminated him two months later.

Erickson challenged his termination, and the Court of Appeals for the Federal Court ruled that because USERRA's re-employment provisions are limited to a cumulative period of five years of military service, it is reasonable to assume employees, such as Erickson, who have not exceeded that period "do not intend to abandon their civilian positions."

His remarks to the USPS labor relations specialist also fell "far short" of an "unequivocal expression of intent" to abandon his civilian career, the court said.

The ruling is significant because it hinders federal agencies' ability to use circumstantial evidence to support groundless job abandonment claims that result in the discriminatory terminations of service members.

The circuit's remand of the case likely will result in a U.S. Merit Systems Protection Board order for USPS to restore Erickson's position and to provide him with 11 years of back pay and benefits, ultimately costing the agency more than $1 million in damages, including attorney fees.

Service members should not let groundless abandonment claims hold up or complicate their re-employment.

Mathew B. Tully is an Iraq war veteran and founding partner of the law firm Tully Rinckey PLLC (http://www.fedattorney.com">www.fedattorney.com). Email questions to askthelawyer@militarytimes.com">askthelawyer@militarytimes.com. The information in this column is not intended as legal advice.

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