Reservists' rights under federal law

Workforce, April, 2002 by D. Diane Hatch, James E. Hall

John Leisek, a quality-assurance inspector for Brightwood Corp., owned a hot-air balloon with National Guard insignia that he used to promote the National Guard. Leisek received written orders from the National Guard in 1996 to perform temporary duty at ballooning events in Idaho and Wisconsin, but he did not receive orders to attend a Colorado event. Although Brightwood told him that the company would consider him to have resigned if he attended the Colorado event, Leisek attended it. The company terminated him and refused to re-employ him.

Leisek sued, claiming that Brightwood had violated the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), which "prohibits discrimination against persons because of their service in the uniformed services."

The district court dismissed his claims, but the U.S. Court of Appeals for the Ninth Circuit reversed and remanded. Leisek was entitled to a trial on the issue of his termination because if his absences were a "motivating factor" in his termination, it would be a USERRA violation unless the company could show that it would have taken the same action regardless of his military status. However, Leisek was not entitled to re-employment rights under the USERRA because his last absence from work was not "necessitated" by reason of military service. Leisek v. Brightwood Corp., 9th Cir., No. 00-35672 (1/22/02).

Impact: Employers should be aware that they may not consider military duty as a factor in any adverse employment decision.

D. Diane Hatch, Ph.D., is a human resources consultant based in San Francisco. James E. Hall is an attorney with the law firm of Barlow, Kobata & Denis, with offices in Los Angeles and Chicago.