Another USERRA Question

Leslie · August 2005

I just found out I have a full time employee hired 02/16/2005 who worked 21.5 hrs Feb 18, 19 & 20, then 14.25 hours Mar 16 & 17. She then was deployed to Afghanistan until January. We may or may not have deployment paperwork - the department is looking. She doesn't qualify for our Long Term Military Leave - that requires that she had completed her 3-month orientation period. However, can I term? And if so with or without deployment paperwork?

PS - I am going to knock heads for them not bringing this issue to me WAY before this - like when she left after only working for 36 hours in a month!

Parabeagle · August 2005

[font size="1" color="#FF0000"]LAST EDITED ON 08-03-05 AT 05:07PM (CST)[/font][br][br]And the motivation behind terming her is.... what? Absence due to military service? I think you'd have a big-time USERRA claim if you did that. And notice to the employer of the need for military service can be verbal - but the employer can request documentation upon return.

Looking through my resources, I can find no reference to an employee having to satisfy an employer's introductory period before protection under the Act applies - but I might just be missing it. The Act does give an out if she was hired on a temporary basis for a "brief, nonrecurrent period" and there was no reasonable expectation that the job would continue for an extended period.

Assuming she is covered under the Act, the Act specifically prohibits you from terminating for any reason other than for cause within one yar of reemployment (if the employee served mroe than 180 days); or within 180 days of reemployment if the employee served more than 30, but less than 181 days.

edit: re-reading your post, Leslie, I'm guessing that your desire to term is because of absenteeism during her Feb-March employment period? If that's the case, I think you can term based on violation of your attendance policy since the offense occurred prior to being ordered to active duty.

Leslie · August 2005

So even without documentation, I need to keep her on the rolls until she returns, then I ask for the documentation showing where she was, right?

The benefits we provide for Long Term Military Duty go above and beyond USERRA. That's why we have qualifications for it - qualifications she didn't meet.

Are you saying I can term six months after last day worked since she worked less than 181 days? Actually she was only actively at work 5 days.

Beags, I think the department has this one so mucked up (wanted to use a different constanant at the start of that word but refrained)that terming her for attendance, or lack thereof, is pointless. It appears after she worked the initial 3 days, they let her off to go say good-by to her family before being deployed. She was supposed to be gone 2 weeks, ended up gone 4, then they let here come back to work for the final 2 days before she left...all with no paperwork.

It's not that I don't believe her, it just seems odd. Everyone else who has gone into the service has beelined to my office.

Parabeagle · August 2005

Ah, now things become clearer. So she must have had notice or orders in-hand before she was hired? If that's the case, getting documentation of her deployment should not be an issue (provided your department head actually asked for a copy).

Think you're stuck with this one, Leslie. Sounds to me like she was hired with full knowledge that she was going to be deployed and the supervisor in your department just mishandled things (or mucked them up, in your words).

And I think you misread my post. If she serves on active duty for more than 30 but less than 181 days, you cannot terminate her except for cause for six months after hse returns.. If she's on active duty for more than 180 days, you can't term except for cause for a year after she returns.

HRLASS · August 2005

I second everything from Parabeagle, and correct me if I'm wrong on this one buddy, but even though you have to rehire after return from military leave (if she follows the correct procedure), I do not believe you have to give her the same Long Term Military benefits you give others who qualify because she didn't qualify. Also, I believe when she comes back, you must rehire her but can put her back to finish the balance of the normal introductory period. We had one recently who was reinstated by an arbitrator with the termination downgraded to discipline after the individual in question had been deployed. He is accordingly eligible for rehire on his return, but will have to start the one year disciplinary probation on his return.

LivindonSouth · August 2005

This is way too much minutia to read through. And I may repeat others. Your policy has no relationship to the government's policy. If yours offers greater benefits, fine. But, you must at least follow the USERRA GUIDELINES, otherwise your company policy is over-ridden. If she violated policies, deal with that as policy and performance issues, notwithstanding USERRA. The fact that you don't yet have paperwork has no bearing on the federal law. But, be cautioned not to monkey around with USERRA.

Rockie · August 2005

Good advice Don about not "monkeying around" with USERRA. The people who are deployed are well coached in what their rights are and all the ways they can get around the rules and regs of a corporation if they are so inclined. Fortunately, the vast majority of these folks are loyal, hardworking people who want to do the right thing.

I have an employee who left for her two week annual training which has now expanded into not coming back until October 3 via orders from her commanding officer. She got mad at her supervisor because he called her at home to ask her a question so she simply got her CO to write her up some expanded orders. There's not a darn thing we can do about this as long as she has orders in hand.

I go along with whatever the government sends as documentation on these folks.

LivindonSouth · August 2005

There is actually something the employer can do (or attempt) when one appears to be taking advantage of the system. An example would be an employee who 'manages' to get assigned to repetitive stateside training exercises and courses, beyond the normal two-week duty. I've experienced this several times and have had the same person get himself assigned to go to Germany and Hawaii for training following his two week hitch and a couple of other 'assignments'. A telephone call to the unit commander will get you referred to someone down the food chain. A frank discussion with that individual will sometimes result in a change in the practice. I've found that the guard and reserves staff don't want to have mad employers and they don't want people abusing the system any more than we do. This approach was recommended to me by a uniformed staff person outstationed at the Employment Security Commission state office in our state. He conducts military job fairs and runs a job bank network for veterans.

Disclaimer: This message is not intended to offend or attack. It is posted as personal opinion. If you find yourself offended or uncomfortable, email me and let me know why.

Leslie · August 2005

I just notified the HR Director and the department manager that we bought it on this one. Thanks guys!

MS HR · August 2005

But remember all, even voluntary service is covered under USERRA if other efforts fail.

Another USERRA Question

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