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Case Law Update

The First Circuit Federal Court of Appeals released its opinion in Velazquez-Garcia v. Horizon Lines of Puerto Rico. The case addresses the level of proof an employee must have in order to maintain a claim for a violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA). Under USERRA, employers cannot discrimination against individuals based on their military service. In Velazquez-Garcia, the employer argued that, to be sucessful, an employee must prove adverse action by the employer (i.e. demotion, termination) was solely caused by the employee’s military service. In rejecting the employer’s argument, the First Circuit Court of Appeals joined the unanimous decisions of five other federal circuit courts and held that the employee must only prove that their military status was a “substantial or motivating factor” in the employer’s decision to take adverse action. The Bottom Line: Any decision to take adverse action, especially if it involves termination, should be careful thought out. Too often these decisions are made out of anger or some other emotion and, as a consequence, lead to litigation. Employers should adopt the mantra of “firm but fair.” Each employee should be treated the same when it comes to disciplinary action or termination. One of the things that struck the court in Velazquez-Garcia, was that the employee was terminated for an offense for which other employees were only reprimanded. The distinguishing factor was that Velaquez-Garcia had taken time off for military service. This case highlights why it is important for every employer to communicate their expectations to their workforce, through policy manuals and periodic meetings, as well as, to be consistent when imposing discipline.

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