Military Leave and Vacation
MaryB
15 Posts
Does anyone know if paying out accrued vacation pay after someone is on military leave for 6 months or more violate the new USERRA Act?
Comments
Don's post is right on. One of our employees applied for us to "voluntary Quit" his employment status and to pay out his "vacation and sick" vacation time directly with his supervisor and our newly operating payroll clerk. We should not have done that. I did not get involved until about 3 weeks later when I noticed there was no weekly pay check for him. I asked and I was informed that he quit.
USERRA provides for the accumalation of these times as they are and to allow for pay increases, if the soldier was other wise due an increase during his/her span of service. Upon returning and applying for re-instatement to active employer service, the employer must take the service member back and pay him/her for the benefits deserved while on active duty. We will also pay the holidays missed while fighting our war.
This case is in litigation and the "payout of vacation and sick time" is being used against us as proof that the employer acted improperly in these actions. Our position is that the individual did not do right from the beginning. I personnally told him to report to me, when he got his official orders because there were some legal things that must take place. Our General Manager talked him about trying to get out of going to Bosnia, he offered our influence to try if he wanted to he told him no; "he was going overseas and make lots of money with no taxes".
The payroll clerk, who at that time worked for the accounting department and she nor the Accounting Department manager knew anything about USERRA. His application for the standard pay out of sick and vacation time should have been accompanied with a written resignation; it was not, thus the payout application is not as strong as it could have been in our defense.
We offered a settlement of "all back pay", he refused and got an attorney. This was in 2001, he did accept our return to work; he is now in Iraq, and when he left this time everything is in place except his law suit for the previous tour of duty in Bosnia. He learned alot about what he left on the table, we did also. Don't be sloppy and kind before the fact wait for the service person to return then celebrate his/her return and the cash payment for all that he/she is due as a returning employee.
We wish you and your service employee a safe and protected journey. May he/her and his/her unit be Blessed.
PORK
PORK
I don't believe our practice can be viewed as punitive as this is our policy for any employee on any kind of leave after 6 months has passed. The thought process is that the ee may want the $$, but I'm concerned that the benefits should be allowed to accumulate until they tell us or come home.