USERRA question

RickAL · May 2006

We have an EE that has recently inquired if he could take two days off to take some entrance exams for the Coast Guard. Due to him already having exhausted all of his PTO for the year (and it's not even June yet!), my first response was to deny him for reasons he didn't have available time. THEN, I got to thinking about the USERRA. In what I've read, the National Guard is mentiong, but nothing is mentioned about "Coast Guard." This is a qualified service, too...right?

Also, the EE mentioned that if he were accepted that he might accept an E3 level, which would guarantee him more pay, but it also commits him to a 6-year service period. Am I interpreting the USERRA correctly in that it says an EE may be reinstated if they serve 5 years or less? Would we be required to reinstate his employment if he were to accept a 6-year term?

I would appreciate some qualified legal advice.

Down_the_Middle · May 2006

RickAl:
For qualified legal advice, I'd suggest you talk to your local counsel or hope that 1 of the forum attorneys jumps in............. In the absence of that, I'll share w/you my non-legal thoughts:

Coast Guard is covered by USERRA. USERRA generally applies to a max of 5 yrs leave. There are some exceptions permitting someone to be gone longer than 5yrs, but they are limited. I do not believe entrance exams are governed by USERRA and quite frankly, there's nothing to protect or reinstate the employee. They take the time off to complete the testing and it's a non issue.

RickAL · May 2006

Thanks, Down-The-Middle! I certainly appreciate your input. I did read that "making application" for a division of the service is something that is included in USERRA.

Al Vreeland · May 2006

Que No. 1 - - In addition to the National Guard and Reserve, USERRA covers the "Armed Forces" (including active duty) which I read to include Coast Guard. The entrance exams would broadly fall into training or service or preparing for training or service so the time would be covered. However, there is no need to provide paid leave for the time.

Que No. 2. - - You are correct in that USERRA caps the cumulative length of service at 5 years for purposes of the reemployment obligation. However, the rule is riddled with exceptions; you should revisit the question of whether the employee is entitled to reemployment at the time that the employee seeks reemployment.

Al Vreeland
Editor, Alabama Employment Law Letter
Lehr Middlebrooks Price & Vreeland, P.C.

RickAL · May 2006

Reply greatly appreciated.

WT · May 2006

The issue of entrance exams interests me. As a general rule, to get time off from work the person in the service must present orders to the employer. In an emergency, no written orders may exist and the employee might be ordered to active duty verbally. However, orders would then exist by the time the employee came back to work. Since entrance exams can be failed, taking them does not make a person in the military service. Can a person really get time off under USERRA without any orders and before they sign on the dotted line and join up?

WT · May 2006

Since the question was of interest, I got to poking through the law. Section 1002.54 does include time for examination for fitness to perform duty in uniformed forces. Go figure.

pork1 · May 2006

WT: "Go figure", well to me it is simple "an honest employee has an honest interest in becoming an honest Coast Guardsman. The intent is what is key! If the ee is going for physical exam or mental testing to be away from work,you would most likely have the real justification or intent to terminate for abuse of company benefits and lack of honesty.

Pork

WT · May 2006

Pork: You may have missed the thrust of my interest in the case. It was something of a narrow and technical issue from the start. The question was, could an employee get time off through USERRA when that employee had never joined or served in the armed forces. Due to the section of the law quoted, it seems that this is the case. An employee can go and take time off while being examined for fitness for duty and not join up (for whatever reason) and still be protected by USERRA. I do not think intent really changes that issue.

pork1 · May 2006

WT: Intent is a factor when the employer starts trying to defend one's action in the frame work of USERRA. The military will not stand for one who attempts to abuse the USERRA protections for personal gain. I can not imagine any situation where one would take off using the protections of USERRA and the mental and physical testing as the reason for being away from the job site! I stand with you on this one.

PORK

USERRA question

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