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.

Under USERRA, if an employee’s military service was longer than 30 days but less than 181 days, the employee cannot be discharged except for “cause” within the first 180 days after reemployment.  The USERRA regulations explain that in order for an employer to prove the cause needed to discharge an employee covered by USERRA, the employer must show: (1) that the employer’s decision was reasonable; and (2) that the employee had notice that such conduct would be ground for discharge.

The Court held that U.S. Bank’s decision to fire To was reasonable as a matter of law because To violated a clear written company policy by failing to properly report his absences.  Even if U.S. Bank had received the note from To’s doctor, To still failed to call-in to his supervisor everyday.  To argued that when HR indicated it would “reevaluate the situation,” if To sent them the doctor’s note for the week of August 15th after To’s termination, U.S. Bank effectively waived its policy that To must call-in to his supervisor everyday.  The Court did not buy it.

“Under To’s logic, U.S. Bank would forfeit its right to rely on written policies by being willing to occasionally forgive violation of those polices in the face of extenuating circumstances…We decline to establish a rule that would penalize an employer…for providing a contextual reevaluation of a termination decision that was, regardless of context, clearly authorized by company policy.”

To also had notice that he could be terminated for job abandonment as evidenced by U.S. Bank’s employee handbook which was given to To and accesable on the intranet.  Moreover it was evident To was aware of these policies when he called into his supervisor the first two weeks of his absences.

Further, the Court held there was no indication that U.S. Bank’s decision to terminate To for violation of company policy was a pretext for terminating To for his previous military leave. 

Unlike U.S. Bank, public employers must provide notice and an opportunity to be heard (i.e. Skelly) to “regular” or “permanent” employees as defined by the employer’s rules before those permanent employees may be terminated for job abandonment.  In all other respects, this case has equal application to public employers and gives us three important rules to follow when it comes to employees who may be disciplined following a protected military leave of absence.

First, employers must have “reasonable cause” to terminate an employee, including at-will and probationary employees, if that employee was reemployed following military leave within the last 180 days before termination if the military leave was between 30 and 180 days in length. If the military leave was for more than 180 days, the employer must have “reasonable cause” for the employee’s termination for one year after the date of reemployment from military leave.

Second, reasonable cause can be satisfied where the employee’s conduct violates clear written employer policies.  For this reason, it is important for employers to maintain written personnel rules and policies and to update those policies regularly.  Now may be a good time to conduct a personnel rules audit.

Third, reasonable cause is satisfied if the employee was on notice that he or she could be terminated for the conduct at issue. Employers must ensure that employees receive policy handbooks when they are first employed and after each time the handbook is updated.  It is also a good practice to maintain personnel rules and policies on the employer’s website or intranet where they are readily accessible.