Reschedule drill??? That's the whole point. They can't reschedule!
It's just plain unAmerican to not fight for the very people who are fighting for you. It's so unbelievable that some of us just don't get it. We are free because of those who are willing to protect our freedoms - a million miles from home, in the mud, the heat, the cold, the rain, bleeding and broken they are willing to fight. And we sit in our comfortable offices and, in all our unbiased wisdom, decide that giving that freedom fighter a chance to test at a later date is giving him some kind of unfair advantage. Unbelievable.
ELIZABETH: It is not unbelievable, but it is real and I know you will like me do everything to find a way to "skin this issue for the benefit of all" and do it again forthe other guy that is not military.
>Reschedule drill??? That's the whole point. >They can't reschedule!
That surprises me, Elizabeth. I've worked with many NG and ANG units around the country over the years and they've all been very accommodating in allowing members to take a rescheduled unit training assembly (RUTA) if they have other plans that interfere drill weekend. The Guard and Reserve can be flexible, too.
As far as "unfair advantage" is concerned, frankly I've always been a little embarrassed by the largesse of the USERRA and my five veterans' preference points on civil service examinations. x;-)
USERRA does not offer protection to national guard members who are not currently federalized. If the guy is simply attending state monthly drills and is not currently federalized, he is not covered by USERRA. Regardless, USERRA does not require accommodation in this instance.
I just returned from a two day labor law update seminar in Tupelo, Elvis' birthplace, and seven attorney-presenters agreed that the guard-member in this circumstance should NOT be offered any sort of testing accommodation unless the employer is prepared to offer a like-accommocation to others claiming any among a variety of protected class statuses and requesting alternates dates or application arrangements.
The general concensus of opinion among the attorneys was that unless there is disparate impact resulting among the examinees, there is no illegal discrimination. In other words, unless you intentionally or inadvertently set your testing dates so as to preclude the testing of guard members, thereby having the impact of excluding them from testing, there is no discrimination.
We all are in agreement about the sacrifice they make and the danger in which they may be placing themselves, but, employers have no moral, ethical or legal obligation to forumulate separate treatment policies (outside USERRA) to accommodate members of the guard, active federal service or veterans.
DON: Section 4311 (a)& (c) of USERRA (Uniformed Services Employment and Remployment Act says: "(a)Previously, only Reservists and National members were protected from discrimination. Under USERRA, persons with past, current, or future obligations in all branches of military are also protected; (c) If an individual's past, present, or future connection with the service is a motivating factor in an employer's adverse employment action against that individual. The employer has committed a violation, unless the employer prove that it would have taken the same action regardless of the individual's connection with the service. The burden of proof is on the employer once a "prima facie" case is established.
The above says, Don you are wrong about the National Guard and Reserve forces not being covered by USERRA. The final sentences of (c) says "you are right" if there was no motivating factor that is connected to the individual's past, present, or future service to the military for the adverse employment action.
Elizabeth: I now believe that Don could be right on this final point, it is up to you to do with it what you want. If no previous applicant has ever been treated differently then to do otherwise would actually be inserting our personal warmth for the military and creating a circumstance of discrimination against other citizens. I still recommend you seek your cities' attorney for legal assistance and stick with his advise.
I was sick yesterday, so couldn't respond until today. I have often re-scheduled my drills. It can be done. My reasons for re-scheduling drill often involve my kids' activities that conflict with a particular drill weekend. Taking a test to get a job, would be just as important a reason to make up drill. MWild made a good point. The USO and other organizations are there for the perks and extras (freebies). Congress is there for prohibiting discrimination. The military indeed learn to respect policies and rules.
"It's just plain unAmerican to not fight for the very people who are fighting for you. It's so unbelievable that some of us just don't get it. We are free because of those who are willing to protect our freedoms - a million miles from home, in the mud, the heat, the cold, the rain, bleeding and broken they are willing to fight. And we sit in our comfortable offices and, in all our unbiased wisdom, decide that giving that freedom fighter a chance to test at a later date is giving him some kind of unfair advantage. Unbelievable."
Holy smokes Elizabeth, take a pill or write a novel, but back off. To tell all of us that we aren't supportive of our troops just because we see a conflict here doesn't make us fat butts sitting in our warm comfy offices doling out theoretical bs to the poor, cold, muddy and bleeding soldiers for pete's sake. Don's given you some really good advice here as well as others. It's called precedence, it's real and it can happen to you too. I was in the Air Force - was in during the first Gulf war and was given lots of freebies, free entrance into Knotts Berry Farm, reduced prices to Sea World and Disneyland, but not a free card to by-pass rules/regulations/policies to take a test to get a job. Geez, it was while I was in the military that I learned to respect rules/regulations/policies & believe it or not, precedence.
Personally, I think this is all much ado about nothing. As National Guard says, if he wants the job bad enough, he'll reschedule his drill. Pure and simple. No need to establish any precedents here.
Elizabeth, you posted a question and received a bunch of responses from a bunch of people who said, basically, that (1) USERRA doesn't require you to "accommodate" this scheduling conflict, and that (2) to vary the testing procedure for one applicant would place your employer at risk. It appears that your employer doesn't want to accommodate him and that you do, so you were hoping to draw support for playing the USERRA card. You want to do this no matter what, so go ahead and do it. Just say "damn the torpedoes" and accept the responsibility that you are going against professional HR advice without accusing your colleagues of being unAmerican, military-bashing Francophiles.
And if you want to send someone to France, please send me. I still like the French.
I'm still of the opinion, having just returned from a seminar, that USERRA does NOT apply to or protect regular state national guard troops. Pork's odd quoting of the regs does not convince me that USERRA applies to the national guard, unless they have been federalized. Anybody care to jump in here and contradict the attorneys?
Actually, Don, even though USERRA may not apply in this particular case, the regs clearly state that it does apply in instances of active duty, inactive duty for training or annual training, voluntary or involuntary. In each of these cases, the individual is serving either pursuant to Title 32 or Title 10 of the US Code, and the Guardsman/Reservist is paid by the feds. The major distinction is that Title 32 is federal active duty under state control (i.e., "weekend drills" or "summer camp") whereas Title 10 means the Guardmember has been federalized. And members of the Reserves (not the National Guard) ALWAYS fall under Title 10, regardless of the type of duty they are performing.
Moreover, most states have their own protections on the books for members of the Guard and Reserve, so even if the USERRA didn't apply, the state standard probably would.
If you will read post number 35, that is what I said. All of this knee jerk reaction to people serving in the guard, having USERRA regulations applied to them is a tremendous amount of over-leap that is more likely than not, not going to apply to them. There are few, if any, state laws that paint state guard members with the protection of USERRA regulations.
But, the same point applies, at the end of the day; We, as HR managers/practitioners/directors, cannot simply apply our 'today' thoughts about military service to the enforcement of our company's policies and procedures.
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"If the guy is simply attending state monthly drills and is not currently federalized, he is not covered by USERRA."
Guess what I was trying to say in my not-so-eloquent way is that a Guardmember who is doing monthly drills IS protected by USERRA, or the state's equivalent. When I was in the JAG Corps we fought this battle all the time with civilian employers. Monthly weekend drills are called "Inactive Duty for Training" and are ordered under Title 32 of the US Code. The only time USERRA would NOT apply is if the individual is on "state active duty" and actually being paid by the state, not the feds (usually this occurs when a guardmember is activated to fight forest fires, floods, local riot control, etc.)
In my opinion, the only reason USERRA would not apply in this particular case is because there's no employment relationship between the military member and the city - edit: and the city's policy is nondiscriminatory.
Well, we have a standoff. Either the attorney-presenters at the seminar I attended are correct, or you are. So, we await the opinion of an attorney-editor, and the question is: Does USERRA protection apply to a guard-member attending weekend drill if he/she has not been and is not federalized or under federal order and is only attending normal, monthly, state national guard drill? (this shouldn't be that difficult to define, even for an attorney)
Hey - I take exception to that - not sure who you were directing it to? YOU have twisted this into and emotional crusade and started attacking those on the forum who disagree with you. I AM CURRENTLY in the National Guard, voted for Bush, and believe it is not a mistake to be in Iraq right now. I think I am pretty high up on the ladder of support for our/ my fellow troops. If you still feel that the "right" thing to do is to accomodate the individual, then do it. Don't call me "unAmerican, military-bashing, Francohile"
Comments
It's just plain unAmerican to not fight for the very people who are fighting for you. It's so unbelievable that some of us just don't get it. We are free because of those who are willing to protect our freedoms - a million miles from home, in the mud, the heat, the cold, the rain, bleeding and broken they are willing to fight. And we sit in our comfortable offices and, in all our unbiased wisdom, decide that giving that freedom fighter a chance to test at a later date is giving him some kind of unfair advantage. Unbelievable.
PORK
>They can't reschedule!
That surprises me, Elizabeth. I've worked with many NG and ANG units around the country over the years and they've all been very accommodating in allowing members to take a rescheduled unit training assembly (RUTA) if they have other plans that interfere drill weekend. The Guard and Reserve can be flexible, too.
As far as "unfair advantage" is concerned, frankly I've always been a little embarrassed by the largesse of the USERRA and my five veterans' preference points on civil service examinations. x;-)
I just returned from a two day labor law update seminar in Tupelo, Elvis' birthplace, and seven attorney-presenters agreed that the guard-member in this circumstance should NOT be offered any sort of testing accommodation unless the employer is prepared to offer a like-accommocation to others claiming any among a variety of protected class statuses and requesting alternates dates or application arrangements.
The general concensus of opinion among the attorneys was that unless there is disparate impact resulting among the examinees, there is no illegal discrimination. In other words, unless you intentionally or inadvertently set your testing dates so as to preclude the testing of guard members, thereby having the impact of excluding them from testing, there is no discrimination.
We all are in agreement about the sacrifice they make and the danger in which they may be placing themselves, but, employers have no moral, ethical or legal obligation to forumulate separate treatment policies (outside USERRA) to accommodate members of the guard, active federal service or veterans.
The above says, Don you are wrong about the National Guard and Reserve forces not being covered by USERRA. The final sentences of (c) says "you are right" if there was no motivating factor that is connected to the individual's past, present, or future service to the military for the adverse employment action.
Elizabeth: I now believe that Don could be right on this final point, it is up to you to do with it what you want. If no previous applicant has ever been treated differently then to do otherwise would actually be inserting our personal warmth for the military and creating a circumstance of discrimination against other citizens. I still recommend you seek your cities' attorney for legal assistance and stick with his advise.
PORK
Holy smokes Elizabeth, take a pill or write a novel, but back off. To tell all of us that we aren't supportive of our troops just because we see a conflict here doesn't make us fat butts sitting in our warm comfy offices doling out theoretical bs to the poor, cold, muddy and bleeding soldiers for pete's sake. Don's given you some really good advice here as well as others. It's called precedence, it's real and it can happen to you too. I was in the Air Force - was in during the first Gulf war and was given lots of freebies, free entrance into Knotts Berry Farm, reduced prices to Sea World and Disneyland, but not a free card to by-pass rules/regulations/policies to take a test to get a job. Geez, it was while I was in the military that I learned to respect rules/regulations/policies & believe it or not, precedence.
Hey, I think France is looking for HR Directors... you'd fit right in. Lack of compassion and support for the American military is a prerequisite.
And if you want to send someone to France, please send me. I still like the French.
Moreover, most states have their own protections on the books for members of the Guard and Reserve, so even if the USERRA didn't apply, the state standard probably would.
But, the same point applies, at the end of the day; We, as HR managers/practitioners/directors, cannot simply apply our 'today' thoughts about military service to the enforcement of our company's policies and procedures.
"If the guy is simply attending state monthly drills and is not currently federalized, he is not covered by USERRA."
Guess what I was trying to say in my not-so-eloquent way is that a Guardmember who is doing monthly drills IS protected by USERRA, or the state's equivalent. When I was in the JAG Corps we fought this battle all the time with civilian employers. Monthly weekend drills are called "Inactive Duty for Training" and are ordered under Title 32 of the US Code. The only time USERRA would NOT apply is if the individual is on "state active duty" and actually being paid by the state, not the feds (usually this occurs when a guardmember is activated to fight forest fires, floods, local riot control, etc.)
In my opinion, the only reason USERRA would not apply in this particular case is because there's no employment relationship between the military member and the city - edit: and the city's policy is nondiscriminatory.