USERRA/Employee Policies
NaeNae55
3,243 Posts
Help!
I have been working on our Employee Manual for over 3 years (long story). I have been basically modifying our owner company's policies to fit us, and now I am stuck.
We both have a PTO plan, but there's is different than ours.
Their PTO plan combines holiday, vacation, and part of the old sick leave plans. The other part of the sick leave goes into a bank for extended illnesses. When employees leave, they get 100% of the PTO paid to them.
Our plan combines vacation and sick leave only. There is no bank for extended illness. Since the sick leave portion (before combining) was generous, we added a caveat that accrued balances would be paid out at 45% when employees terminate.
Now my problem. Our owner company pays out all PTO when an employee goes on military leave. (They freeze the extended illness bank).
Is the payout required? Should we just freeze the PTO or pay it out at 45%? Does the law prevent us from paying it out at 45%? If we pay it out at 45%, will we have to re-establish the remaining 55% when they return?
My head is aching with trying to figure this out and my books are NO help! I need the advice of my fellow forumites.
Help me, PRETTY PLEASE!
Nae
I have been working on our Employee Manual for over 3 years (long story). I have been basically modifying our owner company's policies to fit us, and now I am stuck.
We both have a PTO plan, but there's is different than ours.
Their PTO plan combines holiday, vacation, and part of the old sick leave plans. The other part of the sick leave goes into a bank for extended illnesses. When employees leave, they get 100% of the PTO paid to them.
Our plan combines vacation and sick leave only. There is no bank for extended illness. Since the sick leave portion (before combining) was generous, we added a caveat that accrued balances would be paid out at 45% when employees terminate.
Now my problem. Our owner company pays out all PTO when an employee goes on military leave. (They freeze the extended illness bank).
Is the payout required? Should we just freeze the PTO or pay it out at 45%? Does the law prevent us from paying it out at 45%? If we pay it out at 45%, will we have to re-establish the remaining 55% when they return?
My head is aching with trying to figure this out and my books are NO help! I need the advice of my fellow forumites.
Help me, PRETTY PLEASE!
Nae
Comments
Currently, we are sitting on a little gold mine for one of our employees that left on military deployment over a year ago. I know that she returned to the state before Christmas 2005. She has not checked in with us and she has 90 days to apply for re-instatement and off of military leave of absence. We owe her vacation days accured, sick days based on the sell of sick days to any employee not using the sick time, a whole years worth of holiday pay, the opportunity to catch up her 401K dollars that had she been her she would have vested. Re-instatement into her job position at a increased rate of pay that others got at the end of December 2005.
This is a system that you do not want to get wrong. There are employer handbooks on this issue that you can obtain from DOL for "free". There are web sites from which you can also get the employer handbook. I will be happy to help you develop your handbook on this item, but first get the employer handbook and use it as your own. Get it well read and marked up or else you will be defending yourself in a Federal Court before you can blink an eye!
There is much to research and read from this forum and all of it very good reading and a good way to get educated.
PORK
My research on military leave shows that individuals off on leave do not accrue vacation time. There is a fine distinction in those cases. For instance, if a person goes from two weeks of vacation to three at five years of service,and goes on military leave at three years of service, being gone for two years, then when vacation is given, that person would get the three weeks as if they had been there the whole time. However, they would not have two years of accrued vacation (UNLESS A PERSON ON UNPAID LEAVE OF ABSENCE WOULD ALSO HAVE THE ACCRUALS). I took this all the way up to a high ranking military jag officer and there were grievances with the union, legal battles and the whole deal, but employees on military leave are not entitled to accruals of vacation unless the law has changed since my folks took leave a couple of years ago.
Quote from USERRA Advisor
Vacation accruals, that is, the actual receipt of vacation time benefit itself rather than the rate at which an employee accumulates the benefit, 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 per year), but that person would not return to find three years back vacation waiting.
If an employer allows accrual of vacation for employees who are on a comparable furlough or leave of absence, then a person of similar seniority, status and pay who is absent for uniformed service is entitled to the same benefit, because USERRA treats the individual as being on furlough or leave of absence while performing uniformed service. See 20 CFR Part 1002.150.
USERRA requires an employer to allow an individual to use earned vacation credits while absent for service, providing that usage is at the employee's request. An employer may not require the use of vacation for a service absence, unless the absence coincides with a period, such as a plant shutdown, when ALL employees are required to take vacation. See 20 CFR Part 1002.153.
Call your local VETS office for further details on this issue. If you think your situation warrants a complaint, please review the instructions on how to file a complaint form. You will find a link to the form on the instructions page. The Veterans' Employment and Training Service will investigate complaints and attempt to resolve them. Persons whose complaints against non-Federal employers are not resolved by VETS may request that their complaints be submitted to the Attorney General for possible representation in Federal court. Unresolved complaints against Federal employers will, upon request, be referred to the Office of Special Counsel for possible representation before the Merit Systems Protection Board.
NOTE: In federal cases involving nonselection or layoffs, a person may wish to file complaints under both the USERRA and Veterans' Preference (VP) statutes. If you think that this situation applies to you, you must submit a separate complaint form for each statute allegedly violated (i.e., one for USERRA and one for VP). When this situation occurs, VETS will open two separate cases for investigation.
Please return to the Main Menu for more information on USERRA.
--------------------------------------------------------------------------------
VETS | USERRA Advisor
We treat the deployed employee just as if he/she would have received entitlements and benefits if he/she had not been ordered to active duty. Therefore, vacation leave is accured for every employee and our employee is encoded in our data bank as a employee on Military Leave of Absences. The computer functions with a 40 hour block being added to the total number of hours worked like all other employees clocked in and physically working. Therefore, the employee is awarded his vacation time accordingly to our leave policy. The 52 weeks of working is available for all employees including our USERRA personnel.
Company policy that does better than the law trumps the words spelling out the factors for any program. We do better!
PORK
We will pay out the PTO as if they are terming (at 45%). If they return to our employment, we will reinstate the PTO balance (55%), and make sure they accrue time as if they never left. (We accrue PTO base on hours worked but at a higher rate for employees with more seniority.)
I don't expect I will need this any time soon. We only have 15 employees. We have 1 male and 14 females, and only 2 of these are under 40. But, it is important to have the written policies right so we at least know where to start and what to expect should we ever need it.
Thanks everyone, for your help.
Nae
With written application and proof that the individual was out on military leave of absence (DD-214) is the official document that will tell you everything you need to know in the form of dates. There is a 90 day window in which the person out for greater than 180 days must come back into our emloyment in order to get the benefits, entitlements, and benefits to go active. That is what I meant in the previous post; our employee is currently leaving a small gold mine on the table that is hers for the taking.
Richard
My biggest worry here is that since our PTO plans are slightly different (we went to our PTO plan when they bought us 6 almost 8 years ago, they went to theirs just last year), I cannot handle the payout exactly as they do. I need to match their policy as closely as possible. So if I need to pay out the PTO (as they do) then I needed to know how to handle the rest.
Actually, it should never come up, or at least, not for some time. However, knowing Murphy's Law as I do, I expect as soon as I get this policy published it will become an issue.
Thanks for your help and input.
Nae
This is currently a very positive entitlement and the company must get it right or like the post above indicates, federal court might just be the next step if we get it wrong.
PORK
Doesn't your life insurance policies have coverage exclusions for act of war, or military service? You might want to check that.
PORK