Active Duty Reservists & Probation Period
AHarder
3 Posts
An individual is hired under the company's 90 day probation period. During the first 30 day's it is determined that he is not capable of fully performing the duties of the position. It is also learned that he gave false information regarding prior work comp filings/injury. It is decided to terminated him the last work day of the week. Prior to the action being taken, the indiviual reports to work and advises his supervisor that he has been called to active duty with the Navy.
A copy of the orders is reqested, for us to keep on file for his return from active duty. No mention is made of the impending
termination only that the position would be filled during his absence. The copy of the orders was never received by employer.
What are our responsibilities should he return and demand re-instatement in his Maintenance Supervisor position?
A copy of the orders is reqested, for us to keep on file for his return from active duty. No mention is made of the impending
termination only that the position would be filled during his absence. The copy of the orders was never received by employer.
What are our responsibilities should he return and demand re-instatement in his Maintenance Supervisor position?
Comments
Just curious why he wasn't termed before he mentioned active duty? There seemed to be a delay in notifying him (waiting until the last day of the week). Also, did you not know before hiring him that he was a reservist? The active duty requirement should not have caught you by surprise. Especially the closer it gets to summertime, when 90% of active duty takes place in the form of annual training.
He should have been terminated a week earlier, but the choice of the plant manager was to keep him on until the current project was to be completed (est to be end of week)hence our situation began.
All of the above is great and good advice. The courts are beginning to sort through the multitude of cases that are being constructed in this arena daily, so keep a watchful eye and a clean documented case file on all such USERRA cases.
Recently, another court has made it clear that USERRA is to be LIBERALLY CONSTRUED FOR THE BENEFIT OF THE EMPLOYEES WHO LEAVE PRIVATE LIFE TO SERVE THEIR COUNTRY.
USERRA provides that members of the armed services or reserves who properly NOTIFY employers of their need to take a military services connected absence, who take a cumulative absence of no more than 5 years, and who PROPERLY REAPPLY OR REPORT TO WORK are entitled to re-employment. This, however, is accomplished with a pending clause that the individual and the company can obtain all of the official documents within a 90 day period of probation until the case is made whole by military orders and DD Form 214.
I recommend you be liberal for the moment get and gather as much case information/documentation as possible place the individual on a military leave of absences and wait for his return.
However, if the companies documentation for poor performance during the probationary period of time is sufficient, I would take it all to your attorney and get his/her advice. Our very conservative attorney would say to us to let it ride until he/she returns! The reason, (in our case) most likely is that it is not normal for there to be a good documented case for poor performance in the first 90 days of employment. We pull the plug for poor performance in the first 60 days for all sorts of reasons, but seldom document and thing more than IT JUST WAS NOT WORKING OUT!
You can terminate, if well documented and ride that horse until you are shot out of the saddle. We did and we are waitng on the soldier to return from IRAQ and in-process back into our employment and then finish the court case started in 1999 for his deploymnet to Bosnia.
He volunteered to "quit" and be paid out of all benefit programs, but our payroll clerk, who worked for the accounting department at the time, did not get a formal document of any kind with his signature date, that said I quit pay me out!
Additionally, he sought unemployment when he returned, which we denied and won; he also did not formally apply until his attorney told him he had to do and that was 142 days after he was released.
One would think we had a solid case both upon leaving and a failure to report back within the appropriate amount of time. You see he learned of his termination based on his unemployment case and then sought advice from his company commander while on summer active duty. He sent him to EEOC, who came at us first, they backed out once he retained a personal attorney. I hope I am still alive when this USERRA case gets resolved in our favor.
Best Wishes on your case, be liberal and conservative, where you can for this sailor and this case.
PORK
1) You mentioned that he was not truthful in his responses regarding prior WComp utilization. If you requested that information prior to making a conditional offer, you violated the law most probably. You only have a right to seek that information after making the offer.
2) Your company dilly-dallied around and did not take timely action to terminate when it would have been (probably) defensible to do so. I don't think any amount of explanation for that will float. Now to wait and do that after he returns and asserts his USERRA rights will only put you in a deeper hole to dig out of and I've heard that you cannot dig yourself out of a hole.
If I'm a hearing officer or a juror, I'm likely to think the reasons the company now gives for termination are subterfuge.
I think your company will be ripe for the picking if he finds a half-hunry lawyer. Imagine me telling the jury that I am physically fit enough to be called up and serve in the military but ABC decided to terminate me because I filed a comp claim in the past. Juries will eat it up.
Our intent is to leave this case as we told the individual when he left, the position or a like position will be available to you upon your return. Upon your return to our employment, the remaining 60 day probation period must be completed to both parties satisfaction.
When he returns, if he comes back to us within the time frame allowed, we will then advise him of the concerns of performance issues that need to be improved upon during this probation period. We will also advise that a full release from his work comp doctor be provided to ensure that he can physically perform his duties within the organization. Seems silly based on the fact that he was back in active duty, but attorney advise warrants that we have in our file a document showing he is physically fit.
Thank you for your thoughts on this.
One of our employees, who was activated with his unit was found not fit for deployment and ultimately medically retired from the National Guard. His failure to be physically fit for military service deployment did not give us reason to also terminate or not re-instate him back into his position of work. It could of been, but it was not, he has not missed a day of work and he was certainly glad not to have been required to go to IRAQ.
PORK
That was supposed to post before #8. I was replying to Don.