Hold position open for 5 years???

Kymm

Ok..here's the situation... (at least what I know so far). We have an employee who is in the Army reserves. There is an AGR (?) position open (maybe one of you can fill me in more on just what that is) but he is interested in it and is saying that it is basically a "full-time" reservist. He will need to go thru a 6 week class and pass that class to become one. He is requesting a 6 week leave of absence to do so. From what I am reading... yes, we would have to grant that leave (USERRA)but what concerns me is that he could actually become full-time and if that ended from now to 5 years from now, we would have to bring him back to his same/or comparable position? So... would we terminate his employment (and just realize that IF he came back within 5 years we would have to re-hire him with same seniority, etc.) or would he be out on a leave of absence the whole time? I guess I had always thought the USERRA was for active duty during "war time", but obviously, it's not. I respect and hold highly our armed services...don't get me wrong... but how can a company hold open a job for that long of a time? And if we do fill it, then he does come back... can we just terminate that person we hired? Just want to make sure I am understanding all of this. Thanks!

scottorr

I just re-wrote our military leave policy and did a ton of research into the subject. Everything I have read, says that you only have to grant the leave if it is at the request of US gov't. You can request that the ee show you their letter of call to active duty or have an officer from their branch in which they will be serving notify you, however this is not required if it is impossible or unreasonable because of military necesitty. It has to be designated uniformed services in time of war or national emergency. That is my understanding of what and who is covered.

Don D

My understanding is that this would not fall under the requirements of USERRA. It sounds as if he is volunteering for training that would qualify him for a full time guard employee position. These are civilian employees, if I understand the job he wants, and would not fall under the act. If I were you I would find out the name of the sergeant at the guard unit and speak with him about this training opportunity and ask him how he feels USERRA would apply or not apply. If not satisfied with that conversation, every state guard headquarters has an information officer and training officer you could speak with (or call the state adjutant general's office), or contact the toll free number on one of the USERRA websites for counsel.

Parabeagle

[font size="1" color="#FF0000"]LAST EDITED ON 06-11-03 AT 10:34AM (CST)[/font][p]To answer the first part of your question, AGR stands for "Active Guard/Reserve" and it is a full-time military position (not a civilian civil-service position common in the reserves). These individuals serve under Title 32 USC, if they are in the National Guard, and Title 10 USC if they are in the Reserve. They are afforded the same rights and privileges of any other active duty member. If they serve enough consecutive AGR tours, they are even entitled to an active-duty retirement. Regardless of whether or not they volunteer for the duty, the moment the orders are cut placing them on active duty it is at the request of the government and, in my opinion, USERRA would apply. I served with a civilian employee who accepted a recruiting tour of duty with my unit (an AGR position) and he was placed on a leave of absence by his employer. When his two-year tour was up, he went back to his civilian job. I may be wrong, but I don't think so -- however USERRA was revised recently. I suggest checking with the ESGR (Employer Support for the Guard and Reserve) website.

Kymm

I have been doing some reading from SHRM site and also talked to a "rep" there... looks like he IS covered under USERRA - it is not a "civilian" job and now USERRA covers voluntary and involuntary service. (doesn't have to be in a "time of war" either..) Any suggestions from you all as to how you would progress from here (regarding replacing him)? He is a Class A Driver (Haz Mat endorsements).. We have to replace this position, obviously. So, if he comes back in 6 months or 4 years - and we don't have a driver position open... can we terminate an employed driver without ramifications? (This would be in the state of WA). AND... when they say we have to bring him back to same or "comparable" position... does it HAVE to be in the same location or what if we had a driver position in CA - would that suffice? Your help and suggestions would be most appreciative!

Parabeagle

I would make it clear to whomever you hire that the position covers for a driver who is on military leave (I'm assuming there's no union involved here -- if there is, check your CBA) and is most likely going to end when the military member returns. If he does return you would have to reinstate him to the position he would have had if his employment had not been interrupted or, if not qualified for that position, the position he had when the military service began; or a "similar one with like seniority, status and pay." I think putting him in a trucking position in CA if he's a Washington resident could arguably be a problem as some might not consider that to be "comparable" because of the geography. But bottom line I would just be up front with whomever the temporary is you're going to put in this position.

Kymm

Ok... another question...this employee is also stating that once he passes the class, they will send him to Chicago for 9 months (and they will evaluate him further and can "cut him loose" if they are not happy with his performance at that time. However...he is saying that he would not come back to us (even if that happened) as he is doing all of this to get his family back to Chicago where they are from. He would stay there, regardless... Now, obviously, the guy could change his mind, BUT... IF we got an actual "resignation letter" from him after he moved back there... would that suffice to END the "Military Leave" and the requirements of USERRA?

Parabeagle

To be honest I don't know if a resignation letter would trump reemployment rights. Logic tells me it should, but experience tells me that if he came back five years from now and reapplied for his old position within the appropriate time frame you'd have to give it back to him. Just don't know.

Don D

I'm one of the few people on the Forum who openly admits being wrong on occasion. I am now doing that again. Thanks for those of you who cleared me up on this type of position and how it relates to USERRA. I love to learn new stuff and I also enjoy admitting when I am wrong about an answer or suggestion I have made. I'm tearing up but I won't grovel.

Parabeagle

Does this mean I'm not on your deep-fried-turkey list, Don? x:-)