One Mo USERRA ?

Don D

At the expiration of 90 days and you've not heard from the guardsman, how comfortable are you terminating?

Pork

"Dandy Don" after 90 days from, what date, which is in your hands in the form of a ???? If your response is the seperation date is 2/19/04 as identifyied on the DD 214, which is physically in my hand; I would feel very comfortable and would do so immediately. Without the DD 214 I would not terminate at all. I would, however, write the unit commander, who has returned to the area and inquire about the status of your employee. You could also make contact with the work force development people and in our State is Mr. Angelo Terrell (terrell-angelo@dol.gov.) for his advise and guidance. He may put someone in contact with you to research the specific information you need to determine your options.

PORK

Don D

The serviceman in question called my assistant and said he was out and would return 95 days ago. Then he called and said he was coming in to see me to find out if he could work part time. We've never heard from him again. I've not seen him or a DD214. The FBI came in one day doing a background check on him and told me he had applied for some sort of school. I really don't have time to fool with him and need to staff his position. He was actually on duty at the international airport in Jackson. I don't have much inclination to run this rabbit much longer.

System

Based on the USERRA, Section 4312(f):

"An employer has the right to request that a person who is absent for a period of service of 31 days or more provide documentation showing that:
1) the person's application for reemployment is timely;
2) the person has not exceeded the five-year service limitation; and
3) the person's separation from service was other than disqualifying under Section 4304.

Section 4312(f)(3)(A) is a provision for unavailable documentation, which does not seem to apply here.

I would feel very comfortable in terminating. Soon before he has a chance to change his mind and cause you grief.

"Sam"

Pork

I agree, I think there has been sufficient verbal communication with the individual and he has not made the first move to come in and put it in writing that he wishes to re-apply for employment.

If you have witness to his disclosure to you that he had been released on X date then I would go with that date, make a memo for record of his communications with you and anyone else. Terminate the employment, if then, after the fact, he comes in and wants to re-apply in writing you could abide in favor of the x-ee/civilian soldier put him back to work on a probationary basis giving the individual sufficient time to get the correct documentation required to sustain any USERRA case, that he might develop against your company.

If within the alloted time he does not produce military documentation you could either keep the employee or send him packing very cleanly.

We re-hired our civilian/soldier into an excess position. We were then hit with the loss of two additional soldiers, so on paper the individual remained excess until our additional soldiers returned which they did 5 weeks ago. T

his week I gave the first civilian soldier a notice of termination of his excess position and we were transferring him to a remote work site where a position did exsist in which he would fit. On Monday, he came in and verbally notified his supervisor and me that his unit has been alerted for IRAQ.

Now, I have him moving toward a reduced position but he is not in the position, as we had a medical need develop in another position which he could temoporarily fill. He reports Monday morning to that position and will work there until the medical issue employee is returned to duty with no restrictions.

Should the civilian soldier leave enroute to Iraq, I have everything documented so that anyone will be able to track back to the happenings and keep this thing on-track. All this, while facing a federal law suit with this ee pulling the strings. Our attorney feels like the guy has no case and the attorney on the other side does not know the first thing about our side of the picture. He just thought he was going to play the old settlement game and get us to face a large sum of money and settle before it goes to court.

Document, document, document and just maybe you'll win.

PORK