USERRA

Jayhawk

We have an employee who has been on military leave for over 180 days and is returning next month. Her position before she was deployed was located in one of our smaller offices in Iowa. Our company could not afford to keep paying a temp there, so we had to hire a full time employee to take her position. The military employee was made aware of this and told that we could promote her to a higher position upon return, but it would be in a different location. In the email making the offer she was given four locations to choose from and told that the Des Moines location would probably not be an option, as we are downsizing there and in a crunch.

She then responded that she would be happy to take the promotion, but wanted to be in Des Moines because she has friends there. She has stated that she does not want to relocate to one of the other cities.

Are we obligated as the employer, under USERRA, to have her position be in Des Moines? I read the statute and it does say that an employer is not required to reemploy a person if "the employer's circumstances have so changed as to make it unreasonable...or impose an undue hardship.." The employer also has the burden of proving this. Any help would be appreciated on how to handle this matter. Thanks.

Don D

You are obligated to re-employ her in the position she vacated. Offering her a promotion in another city(ies) does not get you off the hook. I recommend you reassign the person you hired when she was deployed. The DOL won't view this as your circumstances materially changing; only that you hired someone to take her place and failed to reemploy her, in my opinion.

Parabeagle

Agreed. USERRA is one of the most generous and inflexible leave laws around. Reinstate her to her former position. I doubt that you could prove the company's circumstances have changed significantly enough to preclude reemployment.

Pork

JAYHAWK: Do you have your own copy of the DOL "A Non-Technical Resource Guide to the USERRA"?

If you do not, I suggest you contact the local office of the DOL to obtain one. I would also recommend you get out of the E-mail arena and into the US Postal system with return receipt required.

Section 4312(d)(1)(A) does say: "Reemployment of a person is excused if an employer's circumstances have changed so much that reemployment of the person would be impossible or unreasonable. A reduction-in-force that would have included the person would be an example.

It reads as if maybe you might in some point in time be into this event. However, currently, her position is only filled by a new hire. Your best choice maybe to return the soldier to her position that you have in place and let the chips fall where they may. It is understood that she already knows based on your communications with her that the unit maybe down sizing and that a promotion maybe available to her, but only after she has returned to full status in her old position.

I have two soldiers that will be returning to work on Monday morning. One is a manager and one is a truck driver. Both will go back into their positions but the location of one may different. It is the manager that wishes to go back to his previous location but we have significantly changed that work unit and doubled the size of the production and the entire team that he previously knew have changed. When he left the unit he was in was ready to crash and it did. We found considerable negative things that he could have been terminated as a result of poor performance. The war in IRAQ saved his position and it is well documented.

This is one area of the law that you do not want to "dilly, dally" or screw-up; it is very costly and hard to fight without getting your fingers burned.

Good Luck, there are several discussions on this form reference the USERRA, as good research.

PORK

Rockie

I have two people I have dealt with on this issue since the war in Iraq started. One has abused his military status for years. He takes his two weeks guard training which is fine, but he also has his CO sign off on numerous training during the year. Since he doesn't have to use his PTO time for any of this "extra" military duty, he then comes back and wants to take vacation. This angers his co-workers greatly. He was deployed for about 15 months; actually,he filled in at a local base for 15 months while someone else went to Iraq. Nonetheless, he was in service of his country, so he came back to his old job which we held for him.

Another was the case of a female who was recently deployed. Our policy states that your PTO is paid out in a lump sum upon resignation. She wanted her PTO paid out to her in a lump sum. I tried to explain to her that paying out PTO in a lump sum was only in the case of resignation, but if she wanted to use her PTO while she was on military leave, we could certainly pay it out that way. There is no way that I wanted to give out any impression that we were treating her as having resigned in case something came up later with her. She wrote an email, stating that she felt that I considered it offensive that she asked for something she had earned and she felt she had been treated with disrespect. I finally got her to sign a waiver that receipt of her PTO was not an extension of a resignation by her nor an acceptance of one by us. I definitely did not want to get into a p***ing match with her. It's not worth the hassle and aggravation of what you would have to go through with USERRA.

Anyway, the point of this is...I'd go ahead and give the person their old job back, even if you have to displace the one that is in it. The one who left the job originally is legally entitled to have it back. It should have been made clear to the person who took the position that a military person may be entitled to it upon returning and they may be subject to transfer.

POPEYE

> One has abused his military status for years.

Rockie, Just curious as to what you base this statement on? We have several Reservists that indeed receive extra additional training other than their 2 weeks of camp. I also have close relatives that do as well. How is this abusing their military status?

I personally am grateful that an individual, be it an EE, a relative or Billy Jim Bob next door, is giving service to our country and any and all training they can receive is beneficial to not only them but to those they may someday have to protect.

Pork

POPEYE: You know I'm a military retiree and I love our armed forces and pray for each and everyone of them. However, I have three words that fit Rockie's situation" Employee ATTITUDE, ATTITUDE, AND ATTITUDE. The armed forces person who learns the system and tends to abuse the system for their own personal gain at the expense of the citizens of our country, is not worthy of being protected but they are anyway. Rockie and I both have one (1) each and that is enough for our whole country.

My ee "voluntary quit" through the payroll clerk an accounting ee who knew nothing about USERRA and was infact paid out, at his signed request, all awarded benefits were paid out, he took two weeks between termination and report for active duty, he learned after entering active duty of the value of his mistake. I found out about 4 weeks after he was gone that he was gone. I made a personal note on the termination document that this may have been an active duty connected assignment and filed the document. He came back from Bosnia and want his Holiday Pay, I told him that he had "voluntary quit" and he was not entitled to any pay after his termination date.

184 days after he returns to the states after a + 180 day assignment and he then wants to be re-instated. We put him back to work, but not as a returning soldier but as a rehire. He got an attorney and we are still waiting on the court action and it is two years gone by. His attorney thought we would run and settle for big bucks. His attorney and he have a surprise coming we'll go to court and loose before he'll get one red penny. I am not sure if I can still get into my uniform, but I will put my professional name and honesty on the line to block this poor example of a warrior, which I am one.

PORK

Crout

I have to agree with Popeye in that I don't see how Rockie's person is "abusing" the system. There are always extra duty assignments for the purposes of training, (you want them to be good at their jobs, right?) and keep in mind that it takes about 7 people in the rear to support 3 people on the front lines. The fact that Rockie's EE is not overseas should not diminish his/her contribution to the nation.

Pork

CROUT: I also agree with POPEYE; however, there are those civilian/soldiers or military persons that will use the system for their own personal gain at the expense of the civilian employer and the civilian team members. As a long term military family member it is very distasteful of the employee to use the USERRA for their own personal gain. It makes the employer react negatively for the USERRA and those their citizen soldier, who is also employed by an employer, who needs all pairs of feet on the work floor at all times.

PORK

Don D

I agree. We're anxious to comply with USERRA and in fact did so before the Act existed in its present form. I've known more than a few guys, however, who will get themselves assigned to every kind of training imaginable, anything to get them off into a training assignment. I also know it to be a fact that if the employer writes a letter to the local guard unit addressing this situation, the multiple training assignment phenomenon will cease or at least diminish. I have two close friends who are full-time guard officers at the state level who recommend this approach if the absences become problematic.

Pork

"DANDY DON": Thanks for your commonsense posting and I, only wished I had though to that method of getting a head on the issues, earlier. As a previous commander, I would have welcomed the employers letter of concern. The commander is also needing the employer's assistance in the execution of the Commander's responsibility and wants the assurance of the civilian community in the execution of the National Guard responsibility and the exercise of the call of the Governor or the Feds. It has always been my experience and education that "COMMUNICATION IS THE FACILITATOR OF ALL PROBLEM SOLVING".

"DANDY DON" YOU HAVE DONE IT AGAIN, I HOPE YOU TOO, WILL HAVE A BLESSED DAY!

PORK

Crout

See, I'm one of those cynics (or am I a realist?)who thinks that since we don't live in Soviet Russia, pretty much everything everyone does is for personal gain. My best friend is scheduled to come home this week from Iraq having just spent his SECOND Easter in-country. If you asked him why he stays in (this was his third war) he'd tell you it was because he has personal goals....like two pensions when he retires...one from his company and one from the Guard. Oh yeah, he also loves his country, but that only goes so far because it's an abstract idea. He was recently awarded the Bronze Star for bravery in combat. That's in spite of the fact that I specifically told him to keep his head down and not be a hero. If you'd ask him why he risked his neck he wouldn't say it was for love of country. He'd say it was because he loves the soldiers under his command and it would kill him to lose any of them (although he did lose one).

Pork

CROUT: A cynic/realist, no you are a professional HR civilian and we military members need your personal support of anything and everything that the military is attempting to do, as ordered by our government. May God bless your friend and keep him safe to fight another day. Rockie's previous post on this one civilian/soldier goes back several months ago.

Rockie, I hope you will take "Dandy Don's" recommendation. Do not discriminate, but do write the local commander of each of your employees, seek their advice and ask for their understand and help in the support you are going to give. I feel sure it will work!

PORK

National Guard

Hey, I want to chime in. Hope it's not too late. Pork, have you considered that the pay is what is causing this "abuser" to "use the system" and continuously volunteer for extra military duty? His military pay must be a lot higher than his civilian pay. Or he could just be trying his darndest to get a full time job with his unit and will eventually get one and therefore leave your employment any way.
Another point. He is not accumulating vacation pay while he in on duty with the guard. How much vacation time could he possibly have? even though he is using it when he returns - it can't be that much.
(I only work part time, so I don't get to post that often.)
And one last thought. Jayhawk, I know you said you read the statute but I recommend another site. [url]www.esgr.com[/url] (Employer Support for the Guard and Reserve) lots of infor on USERRA there in easy to read Q$A format.

Rockie

> > One has abused his military status for years.
>
>Rockie, Just curious as to what you base this
>statement on? We have several Reservists that
>indeed receive extra additional training other
>than their 2 weeks of camp. I also have close
>relatives that do as well. How is this abusing
>their military status?
>
>I personally am grateful that an individual, be
>it an EE, a relative or Billy Jim Bob next door,
>is giving service to our country and any and all
>training they can receive is beneficial to not
>only them but to those they may someday have to
>protect.

Popeye: What this is based on is I have never seen a military reservist take military leave five or six times a year. (This has been going on for several years pre-war). I was told by an attorney that he has figured out how to work the system to his advantage as he knows he does not have to take his PTO for this leave. We were advised to contact his CO or the omsbudsman to file a complaint if this continued. He then comes back and wants to take five or six weeks a year vacation. That's what irks his co-workers.

We are happy for him to serve his military duty and we happily secured his job for him for all the months he was deployed.

But...unrelated to his military duty...he was a shirker before he went on military duty and he has started the same business again...tardiness, laziness, etc.

This is in no way disparaging against those who serve in the military.

Don D

Calm down Rockie x:-). Sometimes current and ex-servicemen, especially retirees simply will not admit that some of the guys are system abusers and slackers. I think both Pork and Parabeagle understand your plight and hopefully agree with it. There are some in every barrel.

Parabeagle

Oh, there are some out there, no question. Most of the Guardbums we had were unemployed, though, so for them it was bread on the table. However, I do remember one guy we had who had put in 15 years at a large tech company here when he applied for and received an appointment as a recruiter (4 year active duty tour) and kept bragging about the fact he would go back to his employer for a couple years and then retire. I thought that was pretty cheesy.

POPEYE

>But...unrelated to his military duty...he was a
>shirker before he went on military duty and he
>has started the same business again...tardiness,
>laziness, etc.
>
Now you shed a whole different light on the story. As Paul Harvey says, the rest of....

Under no circumstances would I or any respected HR person tolerate attendance or performance issues regardless of whether someone is in the military or belongs to any other social or civic organization. It also sounds like your EE is volunteering for long stints of extra training. We have not had that occur, just an extra Friday or Monday in conjunction with a week-end. Not having the priviledge to serve, I just have a very soft spot in my heart for those that do.

Parabeagle

As a retired reservist whose career was put on hold for a couple of years during the first Gulf War and later for that Bosnian thing, I would like to add an observation: Not all guard/reserve abuse the system, but there are indeed those we used to refer to as "Guardbums" who volunteered for every school and every bit of extra time they could. In my unit, they were few and far between. Most of us laughed loudly at the concept of "one weekend a month and two weeks a year" because it was a fantasy. When I was NOT on active duty, I spent more like five or six days a month and 30 days or so of active duty a year, divided between proficiency training (which was mandatory - not voluntary) and predeployment briefings and processing because my unit was always going SOMEWHERE. Then there were the pilots who had to stand alert a couple of days a month in addition to keeping up their flying time and trying to maintain proficiency in the cockpit; the wrench turners who were responsible for keeping the airplanes in the air more than one weekend a month; the services folks who were out there EVERY weekend because there was always some unit training at any given time; the list goes on and on.

But my point is, the only way employers are going to get any break from all of this grief is when the government stops relying on the Guard and Reserve to perform the lion's share of the work in this post-9/11 world. Start ramping up recruiting for active duty folks and let the traditional Guardsmen and reservists go home!

Pork

PARABEAGLE: Now, "I hear you more loud and clear". Your are promoted from Professional HR to Professional HR/retired military. I don't know which I like better, but any event welcome to my world! You are Blessed, my brother and a wiser person with a vast amount of experience that our family of Professional HR's can enjoy.

PORK