Court decisions alter landscape on FMLA, military service.

The U.S. Court of Appeals for the First Circuit recently issued two decisions of importance to employers in New Hampshire, Maine and Massachusetts.

One, Rucker v. Lee Holding Co., has significant implications in determining family and medical leave eligibility. The other, Velazquez-Garcia v. Horizon Lines, clarifies the employer's burden of proof when defending claims of wrongful discharge in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA).

Eligibility for leave under the federal Family and Medical Leave Act (FMLA) depends, in part, on the employee having been employed with a company "for at least 12 months" Until now, most employers believed the requirement would be satisfied only if the employee had been on the company payroll for 12 consecutive months without a break in service prior to the need for FMLA leave. This interpretation is no longer valid.

In Rucker v. Lee Holding Co., the court held that the 12-month employment requirement for FMLA eligibility did not mean 12 consecutive months. Instead, all periods of employment--regardless of the lengths of breaks in service--must be counted toward when determining length of service for FMLA leave eligibility.

In Rucker, the employee worked for the company for a period of five years, left for five years, and was then re-employed with the company. He worked for the employer for a seven-month period before becoming unable to work and requiring leave. The employer determined that the employee was ineligible for FMLA leave because he had only worked for the company for seven months. The employer did not count periods of prior employment because of the five-year gap in service.

The court rejected this approach and ruled that when determining whether an employee meets the 12-month service requirement for FMLA eligibility, the employer must count all periods of employment, regardless of the duration of intervening breaks in service.

If your company currently does not have record-keeping in place that includes information about all prior employment with the company, consider asking new hires to identify in writing all periods of prior employment and maintain this information as part of the employee's personnel file. Current employees can be asked to provide a similar disclosure. You also may want to include a request for current and prior dates of employment with the company on your leave request form.

Military service

The First Circuit's decision in Velazquez-Garcia v. Horizon Lines identifies a two-pronged burden shifting analysis to be used in USERRA wrongful termination cases.

Under this two-pronged analysis, the employee need only show that his/her military service as a motivating factor in the termination decision in order to prove liability, unless the employer can prove by a preponderance of the evidence that the adverse employment action would have been taken despite the protected status.

This approach places the employer in the position of being able to avoid liability under USERRA only by showing as an affirmative defense that it would have taken the same negative action regardless of the employee's military service.

The employer was not able to satisfy this burden by merely demonstrating that it had a legitimate non-discriminatory reason for discharging the employee.

In Velazquez-Garcia v. Horizon Lines, the employer defended its actions by explaining that it had terminated Velazquez-Garcia for violating the company's code of business conduct.

The court held that "[t]he issue under USERRA is not whether an employer is 'entitled' to dismiss an employee for a particular reason, but whether it would have done so if the employee were not in the military." Under the court's reasoning, proving that there had been a violation of the employer's business code and that such a violation may be a fireable offense, was not enough to satisfy the employer's burden of proof.

The employer's claim that its decision to fire the employee was not affected by the employee's military status was undermined by evidence that supervisors complained about the need to adjust shifts to accommodate the employee's military leave, joked and name-called, which arguably suggested discriminatory animus, issued no warning to the employee or administered other prior discipline related to the alleged offense. Also, other employees with similar violations were not summarily fired.

The Velazquez-Garcia decision demonstrates the need for employers to proceed with caution prior to making a decision to discharge an employee protected by USERRA. The burden of demonstrating that the decision to fire would have been made regardless of military status is a significant one. How the employer will do so should be analyzed in advance of the firing, and the strength of that evidence should, whenever possible, be weighed in consultation with legal counsel.

Attorney Andrea K. Johnstone is a shareholder in Bernstein Shur's Labor and Employment Practice Group.