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October 26, 2010
OK to Work for the Navy on Company Time?

A Tennessee engineering specialist joined a technology firm in 1985. He has held leadership positions in the Naval Reserve since 1992, with the knowledge of his employer. In 2004, the employer considerably narrowed its policy on military leave, and the specialist lodged several complaints. Then an anonymous someone divulged some surprising information about him to the employer.

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What happened. “Edwards” worked for BWXT Y-12, a semi-autonomous agency of the U.S. Department of Energy. He also served as a captain in the Naval Reserve. The 2004 change in BWXT policy meant that employees would no longer be able to take a partial week of unpaid military leave after exhausting an 80-hour period of paid military leave.

During 2005 (Edwards’ complaints about the policy change were ignored), the employer received a few complaints that he was doing Navy business on company time, but a study of his Internet use showed nothing amiss. A later anonymous complaint brought different results: A look at computer equipment he’d been using revealed 3,200 e-mail messages concerning his Naval work, stored in more than 240 folders, as well as hundreds of documents and spreadsheets for the Navy. Placed on administrative leave, he asserted that a supervisor had told him it was OK to do Naval work on company time. The supervisor denied it, and Edwards was fired.

He sued, charging, apparently, everything he could think of: violation of his rights under the Uniformed Services Employment and Reemployment Act (USERRA), violation of Tennessee public policy, retaliation for his complaints about the military leave policy change, his right to perform government work on the job—and others. A district court judge dismissed his claims in BWXT’s favor, and Edwards appealed to the 6th Circuit, which covers Kentucky, Ohio, Michigan, and Tennessee.

What the court said. Appellate judges focused most on Edwards’ claims of retaliation. They noted that the decision maker who chose to fire him, after consulting with top management, had responded only to the anonymous complaint about Edwards’ work and was not aware of his complaints about the leave policy change. They also dismissed as “disingenuous” his claim that his conduct was excused by a company policy allowing use of its IT resources “for the conduct of official U.S. Government or [BWXT] business.” So he lost his case. Escher v. BWST Y-12, U.S. Court of Appeals for the 6th Circuit, No. 09-6054 (8/18/10).

Point to remember: Being on military leave is one thing, but working for the military while your employer pays you is something else.

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