Military leave

catherinetnc

Employee left a little less than five years ago to pursue a job at a local prison. Subsequently, after he left us, we learned that he joined the military instead of working at the prison. Now he is back demanding his old job because of the USERRA, even though he never gave us advance notice that he was joining. Looking at the five conditions, he has met them all except for the notice.

Problem is, we just went through a round of RIF's and really can't justify hiring him economically.

Any thoughts? (please refrain from comments about my Patriotism - I feel bad enough as it is)

Thanks-
Catherine

LivindonSouth

It would be no different if he reappeared saying he had been on FMLA and wanted his job back. He is not covered by USERRA if what you post is accurate, and I'm sure it is.




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.

National Guard

Did he get a job after leaving you all? He would have rights to that job. I don't see how unemployment is covered by USERRA?

WT

Apparently, the employee did not leave your establishment to join the service. He subsequently did join the service. If he did not leave to join the service but quit, you must have some sort of paperwork such as a letter of resignation. Further, his military records will make it clear as to when he joined up. He was supposed to notify the employer if he was leaving to go into the military. If he did not leave to join, he did not take a military leave of absence. There is then a legal question of whether you must give him his former job back. You may want to research the USERRA web site on this or even contact a JAG officer in your state. I have done this and found the military officers to be professional and helpful in explaining how they interpret the law.

If he did leave to join the military and gave you notice of same, you would have to displace another employee in order to hire him back.

Geno

catherine,

You are correct; he was obligated at the time to give you advanced written or verbal notice. If the employee in question did not leave your employ for the stated purpose of military service, than I would think you have nothing to worry about. Do you have a letter of resignation? Do you have any documentation for that matter that documents his reason for departure?

Geno, SPHR

LarryC

Catherine, your answer is in your second sentence...."after he left us". He has no claim.

catherinetnc

Thank you all - upon reviewing his termination notice his stated reason was to work at the local prison.

pork1

CATHERINETNC: I agree with you that it appears that is no obligation under USERRA. Ask the ee to provide you with a copy of his DD forum 214. That will provide the dates of enrollment into the military. Since you did not know he was going into the military you have no record of that fact. Therefore, it is the responsibility of the ee to prove that he was employed by your organization at the time of his enlistment. The DD 214 will show that date of enlistment of service start date.

He can tell an attorney an thing he wants to say, and it then becomes the "hungry attorney" that will pursue your company for sometime and the expense to defend. To keep the person seeking re-employment rights under USERRA, it might be the best course of action, to get the person to give you his information on which he is basing a claim of USERRA protection.

We wish you well and a good end for your company and the citizen service man.

PORK