Larry's Legal Lessons: Hiring Firefighters Who are in the National Guard

Let applicants know why they have been rated poorly, and document the specific reasons.

Prior to receiving the decision from the N.J. Merit System Board, Hart filed a lawsuit in the U.S. District Court for New Jersey on December 5, 2003, claiming a violation of the Uniform Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. 4311 et seq. The federal District Judge dismissed the lawsuit in March, 2006, granting summary judgment to the township, and the fire department described multiple reasons for not hiring Hart:

  1. "Hart seemed to take the interview too casually;
  2. Hart was inappropriately dressed at the interview;
  3. Hart has a criminal history, including an incident with a BB gun and a disorderly persons offense related to an incident with is girlfriend;
  4. Hart has a subpar driving record, including three moving violations and four accidents;
  5. Hart's psychological evaluation suggested that he was immature."

The Third Circuit held, "Hart has put forth no evidence that would dispute any of the above contentions, all of which constitute legitimate, non-discretionary reasons for Hart's selection. Accordingly, we must affirm the District Court's grant of summary judgment on Hart's USERRA claim."

This case should send a clear message to fire departments - let applicants know why they have been rated poorly, and document the specific reasons. This might help avoid five years of litigation.

Larry Bennett is an attorney, adjunct professor at University of Cincinnati's Fire Science Department, a volunteer firefighter/EMT for the past 27 years, and is author of a new textbook that has recently been selected for use by the National Fire Academy, Fire Service Law, by Prentice Hall/Brady. Larry writes a free, monthly Fire & EMS and safety newsletter which you can sign up for at You can contact Larry by e-mail at: