USERRA

Dottie

We have a sticky situation. We are in the process of restructuring the organizational chart at our operating property level. In each of the properties, the same positions are being eliminated. We have an employee who has been with us for two years and has just announced that he has enlisted in the Reserves. He will be leaving within the next week or so for basic training. His position is one that we were about to eliminate. Can we still do this without being in violation of the USERRA? If we can demonstrate that the position is redundant and we are eliminating it in every property?

WT

Typically, basic training lasts six weeks. You must let the individual go to basic training. In the greater scheme of things, six weeks is not that long. While the person is gone, the military must pay them. After they return, you are then free to eliminate the job as you planned. This way, you did reinstate the worker and the elimination of the position is part of a company wide plan and has nothing to do with military service.

Don D

I see no practical reason to wait until you reinstate to eliminate the position. USERRA, like FMLA and others, does not preclude the company from moving forward with what is an already established plan in motion to eliminate, in this case, jobs in the organization. As long as it is abundantly clear that the elimination had nothing to do with the gentleman's military absence. My opinion is that this would be essentially the same as a situation I had about 7 years ago. We were evaluating documentation and recommending termination of a manager. The investigation was proceeding well and was very thorough. All ducks were in a row to terminate the gentleman when he got nervous about the investigation, walked in and announced his intention to apply for FMLA for some surgery he had suddenly gotten scheduled. Since his termination was already imminent, like your job elimination is, we went ahead (with counsel of an attorney) and proceeded with the termination. We clearly were able to show what was in the works and the substantial nature of the documentation clearly pointed to termination. There was no way it could be tied to announced need for FMLA. It would not have served the interest of the employer, in fact would have hamstrung us during his absence, to have put him on FMLA, brought him back, then terminated him. I see your situation as similar to this one unless I missed something.

System

Dottie,

You can find a long list of helpful articles on the USERRA by doing a search on HRhero.com. (Look for the Search box in the left column of this page.)

Christy Reeder
Website Managing Editor
[url]www.HRhero.com[/url]

Dottie

Thank you, everyone, for your input. I did contact our attorney. He agreed, after reviewing the situation, that we would not be in violation of the USERRA by moving forward with this termination. We have seven operating properties and have eliminated this position at each one. None of those who occupied those positions have been retained. Christy, I did find one of those articles in which I located a section that led me to believe we were in compliance. I just wanted to confirm with our attorney. This forum always helps sort through the situation and look at all facets of it. It's great to have all of you out there!