The Law
Can an Army Reservist Be Terminated From His Full-time Civilian Job?

by: Emily Sachar | November 1, 2010

For more than a decade, Vincent Staub balanced his work as a lab technician at Proctor Hospital in Peoria, Ill., with his U.S. Army Reserve duties. But that relationship began to unravel in 2000 when Staub's supervisor openly denigrated his military service and placed him on weekend work rotations that conflicted with his scheduled drill and training obligations.
Eventually, she convinced the hospital's employment officer that Staub should be fired. "I was surprised and angry," said Staub. "After all, I was serving our country."
The dispute has reached the U.S. Supreme Court. The justices have agreed to decide whether Staub's job is protected by the Uniformed Services Employment and Reemployment Act, which prohibits discrimination against employees who are in the Reserves.
The core issue is whether the employer is responsible when a biased supervisor who does not make employment decisions has influenced the ultimate decision maker. It's an example of what lawyers call the "cat's paw theory," stemming from a 17th-century fable in which a monkey persuades a cat to pull chestnuts from a fire. The monkey eats the chestnuts as the cat pulls them out, leaving nothing for the cat except singed paws. In this case, an unbiased and unknowing company official fired Staub and is in court for exercising what Staub alleges was the antimilitary bias of the actual supervisor.
Tension and conflict had developed between the two from 2000 to April 20, 2004, when Staub was terminated. Staub sued Proctor Hospital, claiming that the reasons given for his termination — insubordination, shirking and attitude problems — were a pretext for discrimination based on his association with the military. Proctor said its decision to fire Staub was fair. "Mr. Staub was terminated by an unbiased decision maker, following hospital policies, and after an independent investigation showed no evidence of any bias based on Staub's military service," stated Steve Wilson, a hospital spokesman.
A federal district court jury agreed with Staub, awarding him almost $58,000 in damages, but that was reversed by the U.S. Court of Appeals in March 2009. The Supreme Court will hear the case this fall. "The stakes are high," says AARP Foundation Litigation attorney Tom Osborne. "The court's decision is certain to be applied to other federal antidiscrimination laws."
What it means to you: The court's decision could limit protections for workers under existing federal antidiscrimination laws.

 

Are the District or Appeals court opinions published? If so, what's the cite? This Supreme Court tends to decide issues on very narrow grounds. Even a decision unfavorable to Straub would probably not effect USERRA, but it is worth monitoring. Straub may have unfavorable facts that place the decision in a pure employer/employee realm irrespective of his military status. USERRA may be his only "hook" for an attempt at wrongful termination recovery.

 

The cite for the Appeals decision is 560 F. 3d 647. Google turns up plenty of info on "cat's paw" theory, employer liability, and the actual case and related motions.

 

A Lt. Colonel I know recently summed it up well.

As a business owner it does kind of suck.... to have an employee potentially gone so much. But that is the price of doing business in this country. If you want to continue to do business in a free, capitalist society, then it's your duty to support the members of the armed forces making that happen for you.

As for this case in particular I'd have to read more about the actual story because for all we know the guy was a bad employee.... but this is certainly something to monitor.

Although I'm not in the Reserves yet I hope to be very soon and this is certainly a law that made my resolve to join even greater.... hopefully that does not change.

 

I've certainly experienced enough anecdotes from 9-5 types about juggling the Reserves in a flying capacity with their civilian employer to make me not want to touch 9-5 civi jobs with a 10 foot pole. If I ever end up going TR I'd do it as either an airline guy (God save me for the heresy I've just blurted out right there), otherwise it's full time Reserves or straight civilian no mil duty. I hate to say it but in the days of TFI/TFE, there's no way I'd try to juggle a civilian job with this crap sandwich. It sounds like too much of a hassle and you end up min running the unit anyways, what's the point of that? It's a shame I tell you.

 

Absolutely not true, in all cases. I have been flying Hornets/Superhornets as a USN SELRES for two yrs now with a full time non airline job. I did it for a year as a Contractor with Northrop Grumman and now as a GS. Is it a juggling act...yes but I would argue so is flying for an airline for 18 days/month with commuting and then flying on your days off with the reserves or Guard unit. It's all how you present it to your employer and how they receive it. I have been lucky in that I work for the Navy as a civilian and balance my hours so that I can fly as well. I'm lucky..but to say it can't be done, is just not accurate.

Side note...when I worked for NGC, I had to point out to them that their labor handbook was in direct violation of the USERRA act in terms of them requiring salaried(exempt) employees to take vacation or non paid mil leave for AT. I wonder for how many years reservists were being taken advantage of by that company.

 

Your situation is exactly NOT what he's talking about.

When people talk about difficulty with a 9-5 job, its about employers with no association with the Government or Military. Compared to Airlines, such employers are far less flexible. Getting Mil leave has been streamlined to a rubber stamp at most airlines with the number of pilots on Mil Leave at any given time.

 

Thank you. That was exactly my point.
-- break break--
BDE-

To further expand on my point, where exactly do you think these units expect you to burn your periods in the new world of 6-8 days a month expected participation?... Weekends? Fat chance. Try Tuesday mornings. Go ask non-military affiliated civilian employers for 4 days off a month inside of M-F 9-5. Then add a commute to said unit, out of pocket mind you (IDT travel reimbursement $300 policy is going bye bye next month, for the units who had it in the first place..) and you got yourself a regional airline lifestyle...you know....PAYING for the privilege of working. Some patriotism alright.

The only job I've seen where you can organically get days off during the week is the airlines, and do so in consecutive blocks as well (so you don't have to commute EVERY week to the unit and/or upset your employer every week). I mean, what happened to the Reserves when a TR can't afford to serve anymore...

I also wouldn't generalize about defense contractors being inherently TR friendly either. The people I know who work for DOD-affiliated employers, be it as GS or contract, where these people are CO-LOCATED on the Reserve unit base mind you, still get the spiel about "you work full time HERE, not down the street" about once a quarter and about min run the unit. Doesn't sound very mil friendly to me.

I would want nothing more than maximize my participation in the AFRES. I mean that. I love serving my country in a flying capacity. But I need a construct where there are no punitive consequences for volunteerism. Doing AD work on 60% of the congress mandated paycheck (which my "compatriot" AD peers wouldn't do if a gun was put on their head, their words not mine) is punitive enough....And the airlines aren't hiring, wife already left me, and this bubba has to keep the lights on over here somehow, you know?

 

There are plenty of reserve guys with 9-5 jobs, as others have said they tend to be civil service or defense contractors.

From experience, working at a non-defense affiliated company can be challenging, even with an organization which is supportive because they usually don't know the rules and will do things like charge vacation for AT, etc.

The big problem is that you have to climb the ladder to make the big bucks someday...and there's usually no way you can prove that you didn't get the promotion because you were a reservist. They also may have a legitimate concern that if they elevate you to high things that your military service could be a distraction in the best of times, or a show-stopper if you get MOBed.

If you're going to do more than 2-3 days/month, best stick with civil service or airlines.

 

My experience has been somewhat different with the USERRA.

My company happens to manufacture the airframe that I fly. Granted, I fly a much older version of it, but I still fly a "Big B" product. When I got out of flight school and came back to work my unit put the "requirement" on us to fly 2 times per week to get ready for deployment in 6 months. My boss, who had never been a Vet or even came close to remotely serving just couldn't fathom the idea of AFTP's. HR didn't get it either. As far as they were concerned the Guard was "just another part time job" that should not interfere with my full time employment.

My response to that was "it's not like I have to leave early to head to McDonald's and flip burgers. I take mil leave to fly a company product." I got the ESGR involved and they were absolutely shocked at the treatment I was getting. They kindly informed my manager, HR, the HR manager, and the area VP of what was going on and what the rule was. My boss' response: "Well, I suppose if I HAVE to support you, I will." I wanted to punch him in the throat.

I went on full time orders a month later and have been on either Title 32 or Title 10 ever since.

I suppose in the end, it really depends on whether or not your employer knows the law and what your commitment actually is to a unit. For fliers, we have an intense juggling act to maintain. I am lucky enough to have my unit only a 20 minute drive away so I don't have to "pay to play". The money actually works out in the wash since I got promoted so I make the same amount I would in an 8 hour day regardless of where I am.

It will be incredibly interesting to see what the climate is when I get off of deployment. Naturally, the commitment to fly will be a little less since my min hours for the year will already be met.

Due to the nature of the beast, I am fully expecting to come into work for one day, and have a pink slip the next just so the company can say that they didn't lay me off while I was Title 10.