USERRA

EE has just joined the Guard and will be reporting for basic training and AIT in March for 21 weeks. Because this ee is not being called to active duty, and is not attending annual training, is ee entitled to leave, or should resign and reapply upon completion of AIT? HELP!!!

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  • I believe AIT training equates to active duty for USERRA purposes.
    Go to the ESGR.com website and all the rules are spelled out there as well as a 1-800 number for personal questions.
  • Your employee is eligible for military leave under USERRA -- USERRA makes no distinction between involuntary recall, voluntary recall, or initial entry onto active duty for training. Even if your employee volunteers for extra duty, he is still eligible for protection up to the five-year limit.
  • Parabeagle is right. Training is covered regardless of whether it's active duty or inactive.

    James Sokolowski
    Senior Editor
    M. Lee Smith Publishers
  • Durasurpreme: As stated by others the individual is protected and must be placed on MLA. Make sure you get it in writing that he has applied for MLA or that he is Voluntarily resigning; if voluntarily resigning you must make sure you document that he has been counseled of his rights and the value he may be leaving on the table; afterwhich, if he resigns then file it away and wait for his reapplication within a given period of time after he has been discharged.

    We are facing litigation from an enrolled employee because he told us he was leaving for about a 4 month period of time prior to leaving and then came in and "voluntarily Quit" so that he could collect all of his vacation and sick pay in a lump sum. We got his application for a "vacation pay" pay out because he was going to "turn us loose and go to Bosnia where is was going to makes lots of TAX FREE money". Our General Manager had a private conversation with him and tried to talk him out of leaving; he still left. I was not responsible for payroll at that time; the accounting manager and the payroll clerk knew nothing about USERRA. Two weeks after he was gone, I found out he had indeed left. I created a termination document and made a note to myself on the document(big mistake) which stated this may be "active duty military related". I made this note because if he did come back within the alotted period of time and could produce the Military Orders covering the period in which he cashed out his vacation and sick time, then we would have to put him back on the payroll under the provisions of USERRA.

    He came back well after the USERRA required time after the discharge date, we have been fighting the government and his attorneys for going on now 9 months. He has not provided one set of orders, but I have obtained them on his behalf and would you know the two weeks that he cashed in is not covered by military orders. The office established by the government to protect the rights of the civilian/soldier jumped to the soldier's side as he lied to them about how he left our company. The government is now out of the case, since the civilian has gotten his own attorney which picked up on the govenments position and is looking for a very large settlement, but you can bet this will go to trial before we pay one red cent. My personal note was placed on the termination document to remind me or any replacement HR to look into the USERRA should the individual return. We rehired the individual as a re-hire just like we would any other "voluntary quit" ee, but he wants back pay, holiday pay, year end bonus, a promotion with increased wage rate, new vacation time accurred based on his old hire date, and it goes on!

    I have provided our attorney with a termination letter based on the provisions of USERRA which says that he must provide the necessary documentation with in 90 days or he can be dismissed. Our attorney does not want us to do that because it might, if he wins, in case of a trial, we would then be faced with a retailatory discharge. We are Dam'ed if we do, and cursed if we don't!!! The HR world is a field of mines, so always walk knowingly soft! My thoughts Pork
  • You are so right about this Pork. We have a military reserve employee who really knows how to work the system. Not only does he take his mandatory two weeks of training; he also "volunteers" for special assignments and has his commanding officer sign off on them. He is currently on "military leave" and is stationed at the army base here in town to fill in for a deployed person.
    Additionally, he is a long term employee who amasses a great deal of vacation every year which he has banked up. Of course, he doesn't take his vacation while he is away at training, so he takes four or five weeks a year off to work for the military and then takes as much vacation as he can. His supervisor and coworkers constantly complain about him being away so much, but he knows the system and it doesn't bother him one bit to put his coworkers at a disadvantage.
    He makes out like a bandit as he draws good pay from the military and doesn't have to use his vacation time either.

    I always err on the side of caution when dealing with these type folks as I know they would have no problem jumping into a legal quagmire to the deteriment of the company.
  • Rocky: Thanks for your support, I am a retiree myself and you can bet I have always made sure the vet gets his rightful due, however, I am also a very honest citizen and dedicated to my employer. The civilian/soldier that abuses the system set up for the right purposes, just gets to my stomach and you can bet when we go to court I will have my military uniform on as I am a witness, who long time ago put my hand on the bible and swore an oath to tell the truth. The problem we have are the attorneys who seek settlement rather than going to court over issues! money talks and in the case of USERRA it is very loud and something to catch your eye and ears. Have a nice day and a blessed one at that! Pork
  • The short answer in all military leave questions is "does the individual have orders?" If he or she has orders then the indivual must go and the employer must give military leave. Even if the orders are on the spur of the moment and are verbal to be later followed up with written orders, it does not matter. Military persons must follow orders and when they do so, employers must give leave for the orders and REASONABLE TRAVEL TIME TO GO WHEREVER THE EMPLOYEE IS SENT.

    That's it.
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