USERRA

Hunter1

I think I know the answer to this question, but what do the rest of you think? We offered a part time position to a candidate and she came in and filled out the paperwork and got measured for uniforms. She hasn't started work yet. She just came in and said that she has been called up in the Reserves and wants to voluntarily resign, but would like to be considered for the same job once her call-up is completed. Would you allow her to resign from a job she has yet to start? How would you handle it?

Rockie

This is a new one for me and I couldn't find the answer to it in the regulations. I am assuming you could handle it the same as any other person who declines a position before they actually start work. I wouldn't let her "resign" from the job since she never really started working. I'd just ask her to write a note stating "I am very sorry that I will be unable to accept employment at your firm as I have been unexpectedly called up for military service. I would, however, like to be considered for any future vacancies when my military service has concluded."

One point that bothers me in your statement is "she wants to be considered for the same job once her call is completed." This statement sounds like she expects you to hold the job (that she never started).

I'd be interested in thoughts other might have that may have encountered something like this. I've worked with USERRA before, but not this particular wrinkle.

Crout

When you say "filled out paperwork" what does that mean? For our folks, their official date of hire is when they go through Orientation and fill out paperwork. In your scenario, at my company that person would be a new employee, and so would have to resign.

Hunter1

[font size="1" color="#FF0000"]LAST EDITED ON 02-24-05 AT 12:36PM (CST)[/font][br][br]Rockie & Crout: She made it clear that she didn't expect us to hold the job, just that she thought it was a neat job and she'd be very interested if we had an opening at some time in the future.
In our case, she would work out of a remote location, so orientation would be done there. All she did at our central location was fill out a W-4, direct deposit, and I-9 form. Ten minutes in the office. I know, I know, 'suffered or permitted'.

HRinFL

This is definitely an interesting scenario. You state that she has not started work, and use the term candidate to describe her. Yet, you have had her measured for uniformed and completed the necessary pre-employment paperwork. I know that she has not actually "performed work," but do you measure all candidates for uniforms? I would bet that she would be viewed as an ee, if the hiring process has been completed.

Since she has indicated she wants to resign, I would get it in writing. I know she says that she does not want you to hold her job, but in your prior post, you mentioned that she would be interested in the same position when she returned. It makes me suspect that if she cannot find employment upon her return, you will find her on your doorstep demanding reinstatement to that position or one similar.

pork1

Hunter1: Contrary to some of our forum member beliefs the USERRA does apply prior to enrollment, but only in the negative sense that a company would go so far as to deny one the opportunity to join a company because the individual was a member of a military force.

I would take the opportunity to receive any "letter of delay of employment opportunities with xyz company" on the part of the furture ee, which simply says they will contact your company upon being released from obligated military service to our country.

Then upon contacting your company later on, she/he should be immediately considered for any position in which the individual remains physically qualified. I would use the published deadlines for contacting the employer as it may pertain to the individuals situation to determine whether not I am released from an obligation for hiring action.

This way you positively protect the individual and the company from charges of discrimination of a military veteran!

PORK

PS: Most likely you are not currently in trouble under any case; however, your situation may just be a new test of the law in a year or two when she/he returns from the war zone with Purple Hearts and Bronze Stars with Valor and want a position with your company and you then say wait a minute, we do not owe you consideration because you never "clocked in for work", so you were never an employee! I for one would not like to face a jury to try this case.

Don D

You will find that the Act 'applies to all employees and potential employees who perform, have an obligation to perform, or apply to perform service in the military of the United States'. USERRA prohibits an employer from discriminating against any person 'who is a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service'.

Prohibited discrimination would include the denial of initial employment, reemployment, retention in employment, promotion or any benefit of employment.

USERRA and those attorneys who embrace such cases have teeth like a sabre toothed tiger. I would not want to flip a coin on this scenario and try to defend it. No matter which way you go, you will or might be harshly judged and challenged when the service member returns as a military veteran. I recommend you either grant full privileges of USERRA or consult with a labor attorney if you intend not to. Be prepared to roll out a specific reason for not granting USERRA rights.

Look at it this way. If a disabled applicant revealed her disability and said she guessed she would pass on the job and wanted to apply later, What would you do? And what level of chance might you take that she would not later say that the reason she did not go to work there now or later was because you found out about her disability?