Return From Military Service
Rockie
2,136 Posts
We have an employee who is "rumored" to be returning from being on military leave for the past several months. He has not contacted his supervisor since his leave began for a return date. Under the Uniformed Services Act, is there any obligation for a returning employee to let his employer know of his return date or does he simply show up for work one day?
Comments
[url]http://www.dol.gov/vets/usc/vpl/usc38.htm#4316[/url]
If the time of service is between 31-180 days, an application for reemployment must be submitted no later than 14 days after completion of a person's service.
If the time of service is greater than 180 days, an application for reemployment must be submitted no later than 90 days after completion of the individual's service.
If the individual is convalescing or in the hospital because of a service related disability, then the individual has up to two years to report or apply to return to work.
In all of these instances, USERRA requires the employer to reemploy the individual "promptly." "Promptly" depends on the circumstances of each case. For example, a National Guard or Reservist returning from weekend training will generally be reinstated by the next regularly scheduled work day. However, reinstatement of an individual who has been on active duty might require giving notice to the incumbent employee so the returning employee's reinstatement might be delayed a short time. (See Section 4313(a)).
As you can undoubtedly see, the definition of "promptly" does not provide a practical guide. The best advice is to return the individual to work as quickly as you can. In addition, I note that the statute does not require that the returning individual provide the employer with any advanced notice. Rather, it requires that the returning individual simply inform the employer of his or her desire for reinstatement within certain time frames depending on the lenght of military service.
Final note, USERRA has certain requirements as to what positions the returning individual is entitled to. Clearly, the individual is entitled to his/her former position if the individual is still qualified. However, if the individual would have been promoted but for being on military service, the employer may have to reinstate the individual to the "promoted" job.
As you can see, this is yet another statute that helps all HR personnel earn the big bucks.
Good luck.
Vance Miller
Editor, Missouri Employment Law Letter
Armstrong Teasdale LLP
(314) 621-5070
[email]vmiller@armstrongteasdale.com[/email]
We have had two returnees: one was unpleasant because of the way he left our employment as a "voluntary Quit" prior to going on active duty, only to discover after he got on active duty that he had left much benefits on the table. Therefore, when he came back he came after us with EEOC/Department of Defense/and his attorney. WE put him back to work in an excess position and the ax stopped falling, and we are continuing the wait until he pulls the trigger and we have to continue our side of the case in defense of our actions and the denial of the benefits he left on the table. He does not speak to us except when questioned, which does not matter as long as he gets the work done. He has been back now one year. He did not reapply until his attorney sent us a letter of representation and his letter of application for re-employment, under USERRA conditions, for which in his case did not apply because he had "voluntary Quit" and the period was 145 days after his release before he made contact.
The 2nd came back and we put him back to work even before he was released. When he left he was in a position that was changed by reorganization, and his previous duties were reduced. His wage per hour was the same but his supervisory responsibilities were moved up to the Shop manager. He, the sailor, is now the shop coordinator, an administrative position which gets 40 hours a week; he was getting 60 to 70 hours a week before he went active duty. Needless to write, he is not presently happy with the current situation, but it is the best we could do! Things do change, while he was a way a lot of ineffective procedures were culled, and new procedures put in place to control cost. Bottom line, it was one of those situations that had he not gone to active duty, he probably would have been relieved of his duties and offered something else that he could otherwise handle.
Rockie, learn well before you leap, study every fact because these cases done wrong can jump to the FEDERAL level very quickly and is very costly. If you have any specific questions or concerns feel comfortable in using my e-mail link! We did not get our own attorney involved until he shut us off by getting his own attorney. Initially, we were dealing with DOL and laying out our case, when he got an attorney to enter the case the DOT backed out instantly.
Good Luck, we are waiting on two more to return safely from IRAQ, stationed as attachments to the 101st in NorthWest IRAQ, with God's speed we will get them back and they will go right into their positions, and the occupying person will be re-assigned or they'll be excess to our needs and released.
PORK
Sounds like you have a mess on your hands...hopefully you will come out of it smelling like a rose.
This guy we have is also a piece of work. I am sure he will push the letter of the law as far as he can. He actually works only a short distance from our office at an army base as he is filling in for someone who was deployed to Iraq. We have also had issues with him in the past "volunteering" for assignments and then turning around and getting his CO to write him orders. He will bank up his vacation time because he knows he can't be forced to use it and then he will take it when he returns from his "military leave", much to the chagrin of his co-workers. He is seen as a slacker by his coworkers and no one would be sorry if he didn't come back to work for us. I have since found out that if we feel he is being called for services excessively, we can contact an ombudsman to ask why he is being given "orders" over and above what is normal for a reservist. We will definitely take advantage of this if he starts his little song and dance when he returns from his active duty.
For some reason, he is seeming to take delight in keeping us guessing as to whenhe will actually return from active duty.
He'll probably wait until the 90th day before he re-applies. You know the smartest thing might be to give him plenty of rope with no conversation/communications just to see how smart he is about the USERRA.
We stood our ground on the actions we took with our ee request for verbal resignation and voluntary quit. I learned of his units potential call up in January, I spoke to him in February "to keep me posted and to get me orders for his call-up". He never discussed it with me again, he talked with the General Mnanager in April who tried to convenience him not to go, if he could get out of it. In May he left our employment, to take a rest before going overseas, to make lots of money! He quit working(physical work for him was available, we moved 22,000 hogs to market during his early out weeks) cashed out his vacation time and sick time, and said his goodbyes. The payroll clerk worked for accounting and they knew nothing about USERRA, so they allowed him to quit and paid him out. I found out after about two weeks of not signing a paycheck for him and I ask why there was no time reported for him and the response was: "oh he quit two weeks ago, he is laying out on the beach!" He learned after he left the way he did that he made a big mistake. You might find your "Jail house Lawyer" employee is to smart for his own good, and will make a mistake on which you could jam USERRA up in his face and say good bye.
Tell them all to eat more Pork, the other white meat!!!It helps you know!
PORK