It seems every employer has dealt with an employee who is chronically absent and fails to keep the employer informed of his or her absence.  Employers wonder “is this job abandonment?” “When is enough, enough?” and “What if the employee is not on a protected leave now, but was previously?  Does that look suspect if I terminate now?”

One U.S. Court of Appeal assuaged employer’s concerns when it held that an employer had “reasonable cause” to terminate an employee who violated the employer’s job abandonment policy. In so holding the Court found there was no evidence that the employer’s reason for terminating the employee was unlawfully motivated by the employee’s previous extended military leave.

In the case of To v. U.S. Bancorp, Jordan To (“To”) was an employee of U.S. Bancorp (“U.S. Bank”) when he received orders to attend training with the National Guard for 103 days.  On the day To was due to return, August 4, 2008, To called-in sick and was told to provide a doctor’s note.

For the next three work days, To called each day and spoke to his supervisor indicating he was still sick.  To later produced a doctor’s note indicating he could not return to work until August 11.  To did not report to work on August 11, but called his supervisor and said he was ill.  To’s doctor sent a note to U.S. Bank stating that To would be out until August 18.  To did not show for work on August 18, 19, and 20 and did not call any supervisor.  To claimed that his doctor was supposed to fax a note keeping him out for another week to U.S. Bank, but U.S. Bank denied ever receiving the note.

U.S. Bank had an employee manual which required employees to report every day of absence to his or her supervisor and that notifying HR or leaving messages were not sufficient.  U.S. Bank also had a job abandonment policy that stated that any employee who remained absent for two consecutive work days without reporting the absence to the supervisor, absent extenuating circumstances, was assumed to have voluntarily abandoned their job.  The manual was given to each employee and available on U.S. Bank’s intranet.

On August 20, U.S. Bank mailed a letter to To stating he was terminated for job abandonment.  To called HR a few days later and stated his doctor was supposed to send a note to them for the week of August 15th. HR asked To to send them the note and it would “reevaluate his situation.”  To failed to do so.  To filed an action against U.S. Bank for, among other things, termination in violation of the Uniformed Services Employment and Reemployment Rights Act (USERRA).  The trial court granted summary judgment in favor of U.S. Bank.  To appealed and the Eighth Circuit Court of Appeal affirmed.


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This guest post was authored by Timothy Owen


This is the second installment of a 2-part series on military leave law.  Part 1 discussed basic principles.  This installment explains why the position to which a returning veteran is reinstated depends on whether advancement in that particular job classification is based on seniority or merit.