USERRA & Vacation

Hunter1

I know there have been other postings, and I looked through the search feature, but what's the simple answer, or a reference with an answer to this situation: Employee gets called to active duty with 3 weeks of vacation 'on the books'. Will come back next year, and, normally, would have accrued another 4 weeks on Jan 1, 2004. Doesn't want to take the vacation time this year, and I know we cannot, even if we wanted to, force him to take the vacation during his absence. Does he have 7 weeks coming next year?

Parabeagle

Depends on how your policy is written. If the passage of a years' service and an anniversary of employment are the only criteria, I would say he is eligible for his vacation award. If it accrues based on hours WORKED, however, I do not think you are required to award vacation - because he didn't work any hours for you while he was on military leave. If I'm wrong on this score, I'm sure someone will tell me.

Sunny

I think it depends mostly on your policy, bearing in mind that you cannot penalize your employee for service. What is your policy for unused vacation - does it roll over or get paid out? If it rolls over, he'll have 7 weeks next year. Or at least, that's my opinion.

We had someone called up who had two weeks of vacation, with another two due in January. We paid him for the two weeks and let his accruals continue. He ended up coming back within three months so we told him he could take this years' vacation (unpaid) and would get his normal 80 hours on January 1.

Pork

You treat the soldier like you would any other employee as if he was there and available to take his awarded leave. We have chosen to pay out the leave in cash so that we would not be hit with an extra large expense in that month that he came back. You could give him all 7 weeks and let him take it or ask the serviceman to spread it over the whole of next year for fiscal reasons. Work with the serviceman and be happy that he/she returned safely and that we did not have to go. Bottom line the service man gets it plus all of the paid holidays that he was not here to enjoy. Oh and don't forget to give him that % increase that every one else got last New Year, oh and the year end Christmas bonus, and Thanksgiving turkey or HAM. Our service people have frozen turkeys and hams waiting on their return. PORK

PORK

Hunter1

Thanks for the input thus far. Our vacation policy is a use it or lose it plan based on a calendar year. Employees accrue vacation on 1/1 as long as they're 'alive and kickin'. Pork: We will be glad to have this guy back, as I was happy to return to my employer in the 60's. He was in the office today on his two week R & R or whatever they're calling this leave time, getting married on Saturday, and looking good. He's lost about 40 pounds and agreed he's healthier for it. We're not trying to short him on anything he has coming, but the regs say you cannot force the ee to use his vacation during the active duty period, and I don't know if that means we could even pay him out this year's vacation as long as he didn't want to use it.

WT

I spoke to a JAG officer on this very issue and have done a fair amount of research. While the man is away on duty, he is not supposed to lose any benefits that he otherwise would have received. Thus, if he cannot take vacation due to being gone, I would suggest you just bank his vacation.

Vacation accrual while away is a different issue. Here he must be treated the same as anyone else that was gone from the premises and off the books. Thus, if you gave a leave of absence to an individual for the same length of time as your serviceman, how would they be treated? You should treat the returning veteran the same. As a general rule, they do not accrue benefits while called to active duty.

"Vacation accruals, that is, the actual receipt of vacation time benefit itself, is not usually tied to seniority. For example, a person returning from three years of service may have passed a time benchmark where that person is entitled to build vacation at an increased rate (e.g., from one week a year to two weeks a year), but that person would not return to find three years back vacation waiting." [url]http://www.dol.gov/elaws/vets/userra/ben_vaca.asp[/url]