Travel Time for Military duty

Pork

An EE gave us verbal notice of his up-coming military duty IN August/September time frame; however, two weeks before he is to report he voluntary determines to leave our work force on May 11, 2001 being his last day of duty. He requested his 134 hours of vacation and sick time to be paid out in cash, and departs two (2) weeks in advance of his assignment to start training on May 28, 2001 (a fact we did not know until this summer).

He provided no written orders pertaining to his person, only two letters which atested to the fact that his units could be federalized and called up in August 2001. He says he did, but we have no record. We now have his orders but they were not created until October 1, 2001.

On June 1, 2001 he applies as a terminated employee to get his 401K retirement account; on June 6, 2001 our company sends him his COBRA benefit choice as a x-employee (as a terminated employee and not a employee on military leave of absence).

We are now told by the Dept of Labor that we violated USERRA because we terminated his employment status on 5/30/2001. Until today, he had never reapplied in writing nor did he verbally request to be re-instated; 142 days after he was discharged from the military he provides a request to be re-instated. I maintain that since he choose to quit in order to get the cash value of his sick time, his vacation time, and his retirement monies that we had to abide with his wishes. He "voluntary quit" on May 11, 2001 and we, therefore are not subject ot the USERRA law. You attorneys out there, where do we stand in our defense of our actions?

I am a career soldier and a 25 year HR; so I know now, what I should have done on May 10 when he requested to get paid out and quit our company. Work for his position was available, but he choose to lay out and rest before he deployed for military duty. I believe two weeks for travel time to get to a training site 5 hours away is to much travel time, and thus his action supported a termination as a voluntary quit. Do we have a defense of our actions or is this a loosing cause to fight an x-employee who is really trying to get something for nothing?

Don D

>We are now told by the Dept of Labor that we violated USERRA because
>we terminated his employment status on 5/30/2001.

I'm no attorney, but, the first thing I would do is ask them in writing to cite the basis for the above statement you say they made. I don't think they have the facts. I would not respond until you have full knowledge of upon what they base their charge. An ee who speaks vaguely of forthcoming orders, then quits, has no USERRA rights to my way of thinking. And if he claims it was for travel time, USERRA speaks to that as well and that would not be a rational travel time allowance. Keep us posted.

Pork

I will, I have read through the USERRA documents for employees and employers but I can't find a reference on "reasonable travel time to go". USERRA does address the return times and what our obligations are with and without documents. 143 is clearily outside the 90 day limit but then the Department of Labor wrote that does not matter we should not have terminated the civilian/soldier and it is a "prima facia case" with our termination document which states the employee is terminated as a "voluntary quit". Thanks for your response! Pork

Don D

The initial defense I would be thinking about is this: USERRA provides that "a denial of employment or an adverse action taken against the service menber will be unlawful if service connection was a motivating factor in the adverse action unless the employer can prove that the action would have been taken in the absence of such obligation or membership". My point would be that termination is the employer's normal course of action when employees quit, notwithstanding any mention of a pending military obligation. The employee 'self terminated' by voluntarily quitting. Your termination document merely records his self termination. He terminated himself and it is your custom to consider that a quit. His mention of duty, which never officially materialized, had no bearing on the matter. The following quote is from The National Committee For Employer Support Of The Guard And Reserve: "USERRA Facts For Employers - Although an exact amount of time is not specified in USERRA, an employee, at a minimum, needs to be given sufficient time to (1) travel to the place where the military duty is to be performed, and (2) be properly rested and fit to perform the military duty. Even in cases where the employee's home, workplace, and military duty location are in the same town, he or she cannot be expected to work an overnight shift, be released from work at 4 a.m. and be fit for a full day's military duty starting at 7 a.m." Your Employment Security Commission state office has a Veteran's Service Representative at 601-354-8711. Hope this helps.

Pork

Don, Thanks your information is always on target! Pork

Peyton Irby MS

it is difficult to see where the USDOL is finding a termination and/or any duty to reemploy. 1. the employee voluntarily quit with no pressure from the employer, although it appears the ex-employee must be telling the DOL he was fired or told to quit. 2. this voluntary quit is reinforced with his request for his 401(k)distribution. 3. were his requests for the vacation time, etc. in writing and did he sign anything indicating he was resigning? 4. reasonable travel time is just that although there are no "bright line" rules. 5. as don d wrote, the regulations and the court decisions say reasonable time is "sufficient" time to arrive at his post rested and ready for duty. 6. while litigation is never favored, it is difficult to find any reason to agree to the DOL's demands.

Pork

Peyton, thanks. I am glad you and Don agree with our position. I feel very comfortable knowing what the employees's intent was and still is. Up-date: DOL backed out, Omsbudsman backed out, and we are now involved with his attorney dawg, who is looking for a big settlement deal. At $75.00 an hour for our attorney and $75.00 an hour for his attorney it want take long to run this case to the stupid to "stay in the hunt and do what is right and fight this thing in court"! He has no case but to fight it in our county before a jury of his peers we could be facing a bundle of $ollars. We are hoping to get the facts before his attorney and have him realize that he has been lied to and maybe he'll drop the case for his fear, we could win and waste a lot of his time and effort. The owners do not believe in settlements; it is the wrong message to send. I'll keep ya'll posted as we move through this civilian/soldier concern.

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 09-03-02 AT 04:50PM (CST)[/font][p]Watch out there Pork! Peyton is one of them attorney fellers. Where in hades can you find seventy-five dollar lawyers. Have those guys been to school? I may be wrong, but I would think if all those fed types backed off, it might serve to indicate the weakness of the case. But, you're right, the only thing that matters now is the demeanor of the '12 (unemployed) peers' and the depth of your pockets unless your $75 guy is a settlement-wizard or summary judgement expert.

Pork

Don, I believe they both attended that other school in North MS and they know how to be "Rainmakers", as "JG would call his peers". They all learned well, how to turn those "sand clocks over" and obligate minutes into hours and hours into days and days into years of litigation. "Settlement is the name of the game" and they all are to be commended for doing it well. Our exchange of written appointing letters has now moved into a waiting and voice message game. The game developed by "the telephone system for making lots of communication money" as we are all tied up with "press this number for this person, and on and on". I pulled the $75.00 number out of the hat, I did not want to reveal the true price of the game! The cost of this innocent x-employee's actions are going to be over bearing; all because we were being the good HR department and failed to see the potential outcome of his and our actions. A clear little written resignation letter from our civilian/soldier when he requested to be paid out would have stopped this action in its development stage or it would have cleared up our beliefs as to what he did or did not want.

I am using this forum for one purpose and that is to educate our HR younger peers, just maybe this little HR story will help someone to be a better HR professional for their company, than I was for mine! I'll keep us posted and that includes Peyton and many others I am sure.

Pork

Up-date 9/11/2002 Case is now in the hands of his attorney and our attorney. Ours has all the facts laid out in a neat little package for his attorney. Our attorney has written his attorney a "let's get together and look at the facts letter". He has made several telephone calls to follow up and nothing has changed and the x-employee remains un-employed. It is astonding and a real eye opener in the HR arena.