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Employee wanting to Change His Job Duties due to USERRA?

Mel in COMel in CO 54 Posts
in HR & Employment Law Vote Up0Vote Down
I have an employee who was hired in December 09 who travels 75% of the time annually. He understood when hired that he could be booked to travel from Sunday to Friday in any of the states where we have customers (CO, WY, KS, IL, etc.). The employee came to me yesterday and let me know that he will not be able to travel for about 3-4 months except locally (within our home state of Colorado) because his wife is being deployed to the West Cost for 3-4 months and he will not be able to travel over night or out of state because he needs to be at home to take care of his 4 kids.

The employee at this time couldn't give me dates or really any of the details yet since they just heard yesterday, however he stated that "he knows I need to know because of the Uniformed Services Employment and Reemployment Rights Act (USERRA)". We're a small company of 55 employees and I've never dealt with the USERRA act before but from what I can tell online that the USERRA only protects employees if they have to be deployed and not spouses, correct? I don't have to make any consession for him under USERRA just becuase his wife has to be deployed correct? He hasn't been here for a year so the FMLA law doesn't apply in this case. Anyone with USERRA experience / advice please help!!! Thanks.
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  • 2 Comments sorted by Votes Date Added
  • FunHRBankerFunHRBanker 562 Posts
    PMVote Up0Vote Down
    This may be covered under FMLA. I sent you a private message with some policy excerpts.
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  • Julie AtheyJulie Athey 34 Posts
    PMVote Up0Vote Down
    Mel,

    You are correct that USERRA applies only when it is the [I]employee [/I]who is in the military - not when it is the employee's spouse.

    In addition, in order to be eligible for leave under the federal FMLA, an employee must have: 1) worked for you for at least 12 months, which need not be consecutive; and 2) worked at least 1,250 hours within the past 12 months. From your description of the situation, it appears your employee may not meet these eligibility requirements.

    If the employee is eligible under the FMLA, then you would have to determine whether he qualifies for qualifying exigency leave. This type of leave is allowed when an employee's spouse is deployed in a foreign country. Again, since you stated that the wife is being deployed to the West Coast, it would appear that the employee would not be entitled to leave.

    Julie Athey
    Author - You & USERRA: An Employer's Guide to Military Leave
    Author - FMLA Compliance: Practical Solutions for HR ([url]http://www.hrhero.com/manuals/fmla_compliance?code=FOURM[/url])
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