Military service a priority over job availability
Published 04/14/06

If an employer fails to hire a person because his military service has prevented him from being available on the day the employer wants him to begin work, a recent court decision clarified this is illegal under federal law.

The United States District Court for the District of Massachusetts on April 3, 2006 ruled in the claim of Thomas McClain v. City of Somerville that federal law prevents discrimination in the initial hiring on the basis of unavailability due to active service in the military. In particular, the Uniformed Services Employment and Re-Employment Rights Act of 1994 ("USERRA") prevents employment discrimination against those in the uniformed services.

The purpose of USERRA is: (1) to encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service; (2) to minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for the prompt re-employment of such individuals upon their completion of such service; and (3) to prohibit discrimination against persons because of their service in the uniformed services.

In 1999 McLain had passed the Massachusetts civil service examination to become a police patrol officer. In January 2000, he enlisted in the United States Army for a term of service that was to last until January 4, 2002. From May 2000 until December 6, 2001, McLain was stationed in Fort Lewis in the State of Washington . The City of Somerville was looking for police patrol officers and McLain let the City know of his interest.

In August 2001, the Somerville Assistant Personnel Director spoke with McLain by phone and informed him that he had been selected as a patrol officer subject to his ability to attend a required police academy training to begin October 1, 2001.

Massachusetts law requires new police hires to attend training which usually consists of a 20-week session at the police academy before they become sworn police officers. McLain informed the Somerville Assistant Personnel Director that he would still be on active duty on that date. McLain was thereafter informed that Somerville would not hire him because he was not released from the Army in time to attend the October 1, 2001 session of the police academy.

Somerville acknowledged that McLain was qualified for the job and would have been hired but for his unavailability on October 1, 2001 and therefore there was no issue of whether or not another candidate was chosen because of better qualifications. McLain currently work as a police officer for the Massachusetts Bay Transit Authority having completed training at the police academy for this position.

He remains eligible for appointment as a Somerville Police Officer. The material facts in the case were not in dispute and therefore Somerville and McLain argued their respective positions under the USERRA as to why they were entitled to a judgment as a matter of law. The Court in reviewing the matter determined that McLain was entitled to a judgment as a matter of law against Somerville.

Among some of Somerville 's arguments was that they did not discriminate against McLain because of his membership in the uniformed services but rather because of his unavailability to work at the time of the assigned police academy. The Court pointed out that a relevant provision of the USERRA, Section 4311(a) provides: "A person who is member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application of service, or obligation." Therefore the law prohibits discrimination not only on the person's status as a member of the uniformed services but also on the member's "obligation to perform service."

Since McLain was not available on October 1, 2001 because he had an obligation to perform military service, Somerville violated the USERRA in not holding that permanent position open.

The Court also noted that while the USERRA has a five-year limit on the amount of a time a person may be in military service and still retain reemployment rights, the section dealing with discrimination on the initial hiring does not have any such limit. Likewise, the reemployment rights under the USERRA for a returning member of military service require him to apply to his employer for reinstatement within 90 days of the completion of his service, yet no such provision is applicable to a person in active military service who previously applied for the job yet is not given the job.

In other words, a person does not have to, after the completion of his service period, reapply if he was denied employment based upon his active military service.

The Court further pointed out that the USERRA has no statute of limitations and therefore defendant employers have the opportunity to raise the defense of laches which is a legal argument that the claim should be barred because: (a) the claimant unreasonably delayed in bringing the suit; and (b) this delay prejudiced the employer. McLain delayed filing suit for three years.

The Court found that nothing in the record showed that delay was unreasonable to bar the progress of the suit. In particular, the Court noted that Somerville could not say they were prejudiced in that both sides agreed that there were no factual disputes therefore neither side could make any argument that they lost the availability of witnesses or other evidence. The result was that McLain won his claim on liability against Somerville and did not have to go to trial. There remains a dispute between the parties as to the remedies he is entitled to and therefore the Court had scheduled a further hearing dealing with the remedies.

This case is of particular relevance in these times where we have not only numerous active reservists but also national guardsmen employed in active military duty. While most employers should understand their obligations to reemploy employees who are in active military duty, they should also understand that if the most qualified candidate for a job available is a person that is in active military service, the employer should speak with its employment counsel prior to deciding not to hire that individual because he cannot begin work on the date the employer desires. For persons in active military service who have been denied jobs on the basis of their active military service, they should also consider they may have rights under the USERRA.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and business persons on a variety of legal issues, including employment, and advocating on their behalf. You can reach Attorney Marr by e-mail at: dmarr@hamker.com

This information is general information and may not reflect the most current legal developments, verdicts or settlements. The information provided should not be relied upon as an indication of the actual state of the law or of future developments. The information contained on the Hamblett & Kerrigan website is for informational purposes only and does not constitute legal advice. If the information referenced may be of legal importance to you, you should consult with an attorney to provide you with legal guidance and opinion as the the effect of the current law upon your situation.