Misuse of USERRA?

SMace

What do you think? Recieved papers a week ago for training Jan.5-17 and travel day on 18th. Scheduled back on 19th. Called in (was scheduled to work)today Jan 3 and said had to have physical. Keep in mind we run very lean and when someone calls off it effects production. One argument is he should have had it done on an off day. He was scheduled off Monday and Thursday (we have a rotating schedule). We could either charge him an absence or allow him to take a vaction day. Or we could excuse it under USERRA. Also, he will have paperwork to show that he did in fact have physical.

MS HR

You are probably legally ok, but please learn from my experience that USERRA is very pro-military service and you might be better off erring on the side of the employee.
Whenever in doubt, I found that commanding officers were more than happy to verify the need for an employee's military duty, starting and ending dates, etc.
and the employee is required to give you the name of their commanding officer.\
The USERRA people also have a hot line to the pentagon who will refer you to a coordinator in your state to answer any specific questions you may have.\

SMace

We talked to the CO. He stated he could have had physical either Mon or Fri and they pushed him to have it Fri. It is reasonable that he knew before Mon if that was an option. He should have informed us earlier than the morning (this morning) before the appt. The CO also said his physical was over @9:45. His shift is 7:00a to 7:00p. Very reasonable for him to come in after the shift. That is the bottom line. We are going to charge him a 1/2 day for his failure to return based on info from CO. When he comes back we'll give him a chance to give his side of the story and we'll alter the charge if necessary. Don't see how that will happen.

Pork

Smace: Don't take any negative action prior to the employee returning and providing the necessary written explanation for his actions. Likewise, do not take the CO for his verbal response! Write him a letter and have the military put it in writing, then after you have the ee back on board and all of the facts based on written information are in hand, then make your decision based on written company policy and procedures. Make your adjustments based on the facts and not any assumption, including the CO's spoken telephone conversation. You do not want your company to be in the same position I am presently in arguing with the Federal Government or his civilian attorney as to why you did anything negative while the military person was away. Who knows next week his unit might be activated and he/she go off to war for several years, only to have the military person return to your employment before the end of five years+90 days and want to know why you charged him with a half of day's pay when he was away on military duty!!! It gets nasty, so do nothing beyond awarding the ee with a full day's absent for physical exam plus 15 days for training & travel. Fix the companies' understanding of the circumstance after he returns and provides all the necessary documentation to fit his explanation of the circumstance. He just might have it!!! Pork

SMace

The attendance charge will not affect his pay. Our policy pays the difference for 2 weeks. His orders are for 2 weeks. The physical day (today) is 15 days. If we choose to excuse the absence it would be without pay. Thanks for the input. It helps to get a different perspective.

Pork

TAKE THE SOLDIER/AIRMAN/SAILOR/MARINE FOR HIS WORD, CHALK IT UP AS A DAY OF REQUESTED MILITARY LEAVE OF ABSENCE, MAKE SURE YOU GET HIS REQUEST IN WRITING, MAKE SURE HE PROVIDES BOTH THE ORDERS FOR THE TOUR OF DUTY INCLUDING THE PHYSICAL EXAM DAY (WHICH I DOUBT IS THE FACTS)AND DOCUMENTATION FOR THE EXTRA DAY FOR A PHYSICAL.

You most likely will not get a copy of the medical examination but you can get a letter from the unit, which explains the extra day for physical examination.

NORMALLY, WHEN A PHYSICAL IS REQUIRED IT WILL BE CONDUCTED ON THE FIRST DAY OF TRAINING, AFTER THE MILITARY PERSON HAS TRAVELED TO A MILITARY FACILITY WHERE A MEDICAL FACILITY IS LOCATED. THE MILITARY DOES NOT LIKE TO PAY FOR PHYSICAL EXAMS, THEY WOULD RATHER HAVE THEIR OWN RESOURCES "FOOT THE BILL" FOR PHYSICAL EXAMS. OF COURSE, THE ABOVE ASSUMES THAT THERE IS NOT A MILITARY FACILITY IN YOUR COMMUNITY, OTHERWISE, WHY WOULD THERE NEED TO BE A DAY OF TRAVEL?

I could be wrong, but it is best to allow the ee (civilian/military) person,to put the noose around their own neck and let them have enough rope to hang their own person. The military service does not wish to have ee (civilian/military)protective laws abused by either party. Just don't do like I did and take the ee for his word and took action, accordingly, based on our company policy. Action which has come back to haunt me, now going on two years and it is not finished as yet! Good Luck Pork

Parabeagle

Based on my experience, I recommend biting the bullet and, for now, taking the ee's word regarding the physical and applying it to USERRA leave. In any event, you will be able to get some sort of documentation (orders or other paperwork showing the individual was in a duty status at the time of the physical).

One thing many employers do not realize is that in some cases orders placing an individual on active duty or active duty for training are accomplished AFTER the fact and may not be available at the time the ee actually departs for their duty station. However, upon the ee's return from duty he should be able to provide you with a copy of orders covering the period of the training and something official (for example, a leave-and-earnings statement) showing that he was in a duty status on the 3rd for his physical (he cannot receive a physical unless he is in some authorized duty status). If he cannot produce the documentation, then I would proceed with your original plan -- I'd bet you just about anything he produces the necessary documents pretty darn quick.

SMace

The orders are dated Dec 18 and he gave them to his team coach last week. So he knew ahead of time about the physical. The issue is he notified us late and took an entire day off when a half day was very reasonable. Of course we have to get his side of the story before we finalize anything. His half day charge will not put him in any disciplinary position and if he has a reasonable explanation, we will excuse the day.

Parabeagle

Yeah, sounds like you're pretty well covered, but I suggest you tread carefully on this one, SMace. Given how far in advance he rec'd his orders and, assuming he knew about the physical further in advance as well, a little more advanced notice is not unreasonable. But I'll give you a little advice regarding commanding officers -- They don't necessarily know EVERYTHING (or, in some cases, ANYTHING) that's going on and your ee may well have been pressed into service to prepare gear for deployment or something after his physical. Glad you're open to your ee's side of the story.

Pork

I agree: I quote from today's Personnel Legal Alert on this subject: "To avoid discrinination or harassment claims, you should have solid reasons for believing that the employee is not acting under official orders despite his/her oral notice". Again let the ee have the ability to draw the noose ever so tightly, get his story in writing and then have official military channels put it in written format. You just might catch a loose story blamed on military duty which it might not be. My military full physical exam in December for a 62 year old took all of two hours including an extensive lab work! Pork