USERRA and its Affect on Job Posting in a Union Environment

morrisg

I have several employees that could be called up to military leave. Upon return, if we have posted job openings in the plant while they are gone, do those returning employees have a right to bid on those jobs even if the job was posted several months or weeks prior to their return? To do so would create a messy domino affect, if their seniority (which continues under USERRA) mandates under the USERRA law to bid on a job once they return, even if considerably time has passed and another employee was already assigned to the job.

Parabeagle

I don't think you are required to permit them to bid on already-filled positions. As I understand it, using the "escalator principle," they need to "get back on the escalator" at the point they would have been had they not gotten off -- in other words, they need to be reinstated to their current position with no loss in benefits that would have accrued had he/she not been absent.

morrisg

Thank you, you make a good point based on the escalator principle. To carry the analogy a bit further and using my example an employee leaves, but is not "riding the escalator" once he goes into the military, and thus it would seem he would not be eligible to bid.


Morris Germain SPHR
Manager Human Resources
Elk Corporation of Alabama

Pork

Probably: you should go to your unit contract & company policy and see how you handle this concern. USERRA is written to protect both the company and the employee. Bottom line is the ee/soldier is treated as if he is omni-present and whatever would have happened to him/her you would simply save the action available for him/her upon their successful return. I have asked our employees to keep us up-dated with mailing addresses because we will pay out their unused: holiday, sick and vacation time at the end of our business year or anniversary year so that we do not get hit with a big expense during one pay period. The military/employee gets these because we do it for all labor employees. Management employees will get their vacation pay but not the others because they do not get them now. WE REALIZE THEY WOULD NOT BE ELIGIBLE FOR ANY OF THESE UNLESS THEY SUCCESSFULLY RETURN TO OUR EMPLOYMENT. Our company controller does not want to wait until they return because that could be a financial hit all at once. By spreading it out the financial hit is not so painful to the current operating P & L. Pork

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 02-03-03 AT 11:06AM (CST)[/font][p]Typically, according to what I read and have experienced on USERRA, the employee called into uniformed service has the following types of rights: Continuation of group medical, applications of paid leave, reinstatement upon conclusion of service, and protected rights related to missed retirement plan contributions while absent. I don't read anything extending bidding rights to the ee while he or she is military active or establishing, upon return, a procedure to consider what jobs he or she 'may' have bid on if present. But, for quick answers, you can visit [url]www.dol.gov/dol/vets[/url] or call 800-336-4590 with your USERRA questions. There is a concept called the 'Escalator Principle' in USERRA language, requiring that the returning ee be allowed to 'step back on the escalator' in the same position he/she would have occupied in the promotional scheme of the company, had it not been for the occurence of the military required leave. But, I don't see language that expands that to require their consideration for every position for which they 'might' have bid during the absence. I would avoid the suggestions of those who may try to encourage you to give them any job they may have qualified for while active, simply because they are serving their country. Follow the law to the letter, but base your decisions on the law as written and advice from those who administer it. Let us know what you find out.

EDIT: I was writing the above as the other guys were posting, so I apologize for any redundancy. The escalator concept is just that. It is a concept of a 'moving' escalator, as most are intended to do unless malfunctioning. The absent serviceman has the benefit of having his place 'held' on the escalator, as if to allow him to step right back on when he returns. Otherwise, the concept of the escalator loses its value and he might as well have been standing in a broom closet while absent, rather than on the escalator as the law allows. In other words, you must allow for any promotion or other benefit he/she would reasonably have received had he/she never left the company.

morrisg

You point is well made and appreciated, particularly on what you say about the escalator provision of the law. That’s a very logical argument and certainly makes sense to me.