Happy Independence Day!  To celebrate our country’s 241st birthday, I did a little searching for cases where the Fourth of July played a role in employment law decisions.  I found two cases (one old and one new) which were interesting.  Both cases involve the rights of servicemen.

Eager v. Magma Copper Co., 88 S.Ct. 503 (1967), required the United States Supreme Court to interpret the Universal Military Training and Service Act (“UMTSA”).  The UMTSA was a predecessor statute to the Uniformed Services Employment and Reemployment Rights Act (“USERRA”).  Stephan Eagar worked for Magma Copper Company from March 12, 1958 until March 6, 1959 — when he left to enter military service.    He returned to work immediately after his service on May 2, 1962.  He sued when Magma Copper did not pay him for vacation pay for Memorial Day and Independence Day in 1962.  Magma Copper’s Collective Bargaining Agreement only permitted vacation pay for those holidays if the employee was on the payroll three straight months prior to the holidays.  Because Eagar was in military service during the three months prior to Memorial Day and Independence Day, Magma Copper contended that he was not entitled to vacation pay.  The Supreme Court found that Eager was entitled to be paid  because the UMTSA required that he be treated as if his had kept his position continuously during his stint in the Army.  USERRA contains substantially similar provisions.  So, Eager provides a valuable lesson to employers today:  the terms of a collective bargaining agreement cannot override an employee’s rights under USERRA.

Ashman v. Winnebago County Sheriff’s Dept, No 11 C 50388, 2015 WL 641784 (N.D. Ill Feb. 13, 2015) involved a direct interpretation of USERRA rights.    Matthew Ashman was employed as a corrections officer by the Winnebago County Jail, and he was also a member of the Illinois National Guard.  He was called to duty with the National Guard for the period of June 30, 2008 to July 11, 2008, and he reported for duty after notifying his employer.  Mr. Ashman’s unit commander granted leave for all members for the period of July 4 to July 7 to celebrate the Independence Day holiday.  But, while on leave, unit members were subject to recall.  Retroactively, in an effort to avoid paying unit members for the holiday, the Department of Military Affairs issued orders stating that Ashman only was ordered to service for June 30 to July 3 and July 8 to July 11.  When Ashman’s supervisor received those revised orders, Ashman was terminated for missing an assigned work shift on July 7, 2008.  After a thorough analysis, Judge Frederick J. Kapala concluded that Mr. Ashman was subjected to discrimination based upon his military service, and ruled in his favor.

The best lesson that can be learned from Eagar and Ashman is to proceed cautiously when making employment decisions that are related in any manner to an employee’s military service.  USERRA provides substantial rights to employees who also serve our country.  As we celebrate Independence Day, we should be thankful for the service of members of the U.S. Military, and also be mindful of their rights.

No good deed goes unpunished.  If employers are lenient in application of their work rules, employees can attempt to take advantage at a later date.  One Alabama employer learned that lesson the hard way recently.  See Foster v. North American Bus Industries, Inc., No. 1150716, 2017 WL 1534547 (Ala. Apr. 28, 2017).  The employee in Foster arguably suffered an on-the-job injury.  The employer’s policy required all employees to call their supervisor at least thirty minutes before their shift in the event of an absence.  Failure to telephone in advance of two consecutive shifts would result in termination.

In the course of receiving medical treatment for the alleged work injury, the employee in Foster failed to directly telephone her supervisor on two consecutive days in advance of an absence.  The employer terminated the employee, who promptly sued for retaliatory discharge under Alabama Code Section 25-5-11.1.  The employer was able to convince a trial judge that the employee was fired because of the call-in policy. But, the Alabama Supreme Court reversed and ordered the case to trial.

In particular, the Supreme Court relied upon evidence that the employer did not consistently enforce the call-in work rule.  The employer claimed that it terminated the employee, because she did not call-in before shifts on July 23 and 24, 2012.  But, the employee offered evidence showing that the employer excused her absence on July 19, 2012 after her husband called-in for her — and that he called-in again before the July 23 shift.  The employee also claimed that she left a written doctor’s excuse at the employer’s guard shack on July 22, 2012.  The employer claimed that delivery of a note to the guard shack was insufficient to meet the call-in policy — but, the evidence also showed that the employer did accept such a note on July 11, 2012.

In short, the employer tried to base its termination on a strict interpretation of its call-in work rules.  Yet, earlier in its treatment of the same employee, strict compliance was not required.  The Supreme Court found that the failure to consistently apply the call-in policy could allow a jury to infer that the real reason for termination was not the call-in policy, but retaliation for a workers’ compensation claim.

The lesson to be learned from Foster is:  consistency.  If you terminate an employee for violation of work rules, you should make sure to consistently enforce the rule.  If you make exceptions to the work rules for one employee, you need to seriously consider making exceptions for other similarly situated employees.  If you don’t, you risk the possibility that an employee could accuse you of differential treatment in the future.