USERRA
durasupreme
68 Posts
EE has just joined the Guard and will be reporting for basic training and AIT in March for 21 weeks. Because this ee is not being called to active duty, and is not attending annual training, is ee entitled to leave, or should resign and reapply upon completion of AIT? HELP!!!
Comments
Go to the ESGR.com website and all the rules are spelled out there as well as a 1-800 number for personal questions.
James Sokolowski
Senior Editor
M. Lee Smith Publishers
We are facing litigation from an enrolled employee because he told us he was leaving for about a 4 month period of time prior to leaving and then came in and "voluntarily Quit" so that he could collect all of his vacation and sick pay in a lump sum. We got his application for a "vacation pay" pay out because he was going to "turn us loose and go to Bosnia where is was going to makes lots of TAX FREE money". Our General Manager had a private conversation with him and tried to talk him out of leaving; he still left. I was not responsible for payroll at that time; the accounting manager and the payroll clerk knew nothing about USERRA. Two weeks after he was gone, I found out he had indeed left. I created a termination document and made a note to myself on the document(big mistake) which stated this may be "active duty military related". I made this note because if he did come back within the alotted period of time and could produce the Military Orders covering the period in which he cashed out his vacation and sick time, then we would have to put him back on the payroll under the provisions of USERRA.
He came back well after the USERRA required time after the discharge date, we have been fighting the government and his attorneys for going on now 9 months. He has not provided one set of orders, but I have obtained them on his behalf and would you know the two weeks that he cashed in is not covered by military orders. The office established by the government to protect the rights of the civilian/soldier jumped to the soldier's side as he lied to them about how he left our company. The government is now out of the case, since the civilian has gotten his own attorney which picked up on the govenments position and is looking for a very large settlement, but you can bet this will go to trial before we pay one red cent. My personal note was placed on the termination document to remind me or any replacement HR to look into the USERRA should the individual return. We rehired the individual as a re-hire just like we would any other "voluntary quit" ee, but he wants back pay, holiday pay, year end bonus, a promotion with increased wage rate, new vacation time accurred based on his old hire date, and it goes on!
I have provided our attorney with a termination letter based on the provisions of USERRA which says that he must provide the necessary documentation with in 90 days or he can be dismissed. Our attorney does not want us to do that because it might, if he wins, in case of a trial, we would then be faced with a retailatory discharge. We are Dam'ed if we do, and cursed if we don't!!! The HR world is a field of mines, so always walk knowingly soft! My thoughts Pork
Additionally, he is a long term employee who amasses a great deal of vacation every year which he has banked up. Of course, he doesn't take his vacation while he is away at training, so he takes four or five weeks a year off to work for the military and then takes as much vacation as he can. His supervisor and coworkers constantly complain about him being away so much, but he knows the system and it doesn't bother him one bit to put his coworkers at a disadvantage.
He makes out like a bandit as he draws good pay from the military and doesn't have to use his vacation time either.
I always err on the side of caution when dealing with these type folks as I know they would have no problem jumping into a legal quagmire to the deteriment of the company.
That's it.