Is this wrongful termination?

[kat30s]

What is the name of your state? CA

I was informed I should post this here.......My husband was in the military, active 10 years, National Guard for 4 years. While a National Guardsman he was recalled to active duty following 9/11. He was eventually released to part time duty again an secured a full time job. His employer was fully aware of his military involvement. During this time, my husband and I got married, and we were not able to take our honeymoon right away. We decided on a time, and he informed his employer, who okayed the request - he gave them 2 months notice. Shortly before that, he was called in for a 6 week training program with the military. Upon his return, his employer told his that since he was already away, he could not take our honeymoon off. My husband explained to him that his "time off" was military related, and not personal, and according to his commander they could not penalize him for that time. He explained we had already payed for our trip, and he would be taking the time. The employer told him it would not be a good idea. well, we went on our honey moon, and he was fired. When we got back my husbad went on unemployment. He found a job pretty quickly, and it caused us no real financial hardship. Well, my husband is a computer engineer and mostly does contract work. His contract ended recently and he applied again for unemployment. He was informed by letter that he owed for the unemployment money that he received last time, because his employer said he was absent without permission. They are fining him like 15 weeks, and want payback, plus fees. Was this in fact wrongful termination, and is there anything we can do besides file for an appeal with unemployment? He has since gotten out of the military (he is on inactive reserve), and has no access to JAG. Any info would be greatly appreciated.

 

[JETX]

"Was this in fact wrongful termination"
*** Based solely on the information in your post, no. The reason he was terminated was that he took VACATION (for the honeymoon) without permission and as such, has nothing to do with his military service.
Vacation is NOT a right.... and is subject to change by the employer. Even though they might have approved it 2 months previously, they could (and apparently did) withdraw that approval. He decided to go anyway.

"and is there anything we can do besides file for an appeal with unemployment?"
*** No. As I see it, he was terminated by his previous employer for taking the time without their permission. Generally, that would be refused as 'terminated with cause'.... and making any previous payments void.

Just one more comment.... you say that he does contract work. Is this as an employee of an agency or an independent contractor. If an IC, he wouldn't normally be eligible for unemployment anyway.

 

[kat30s]

first of all - the employer equated vacation time with his military duty. He told him because he did his duty he was not eligible for vacation time. That's what his employer told him - that his "military duty" was his vacation time. We wee informed by his CO that this was illegal, and they could not count his military duty as vacation time - they were 2 seperate things.

 

[Meursault]

First of all, unless your husband's CO is an attorney licensed to practice in your state, OR on the federal level, what he says is as relevant as what SpongeBob would say.

Now, since you want to argue the point of what the Employer said, argue it in court. I'm sure the story will be different between what you understoon (third-party is not admissible) ans what the boss actually said.

Simply put, the boss probably said that since your husband was gone for so long, that vacation time (which the company is not REQUIRED TO OFFER) was being withdrawn for the time it was requested.

And since your husband decided that he knew better, then now he can pay the price.

 

[kat30s]

ok - his employer said it was "vacation time" for a government ordered training. Not trying to argue here - or be an ass - just trying to get an understanding to MILITARY law regarding this situation - unemployment said he was a sent without permission and equated his military required duty with his vacation time - they say it is the same thing. Listen - no-one is trying to get away with anything here. My husband has served faithfully to this country, and deserves to be treated with respect. All I am trying to understand is if an employer can charge a military employee with "vacation time" for a government ordered training. I have seen you post everywhere meursault........are you a member of the military or JAG? Where do you get your military info from?

 

[JETX]

USERRA (Uniformed Services Employment and Reemployment Rights Act of 1994) forbids an employer from requiring an employee to use his or her vacation or similar leave during a period of military service. In some cases, employees may ask to use vacation time and/or personal days for military duty; in such a case, the time off would be paid at the regular base pay rate.

So the question becomes... did he receive ANY pay for the time that he was on active duty?? If so, then that pay would very likely have come from somewhere.... accumulated off-time, vacation, earned holidays, etc.

And if he received NO pay at all, then it would have been prohibited for the employer to 'charge' his time against his vacation. Clearly SOMETHING is missing here.... and I have to assume that he received some pay during his active duty.

If you need more, the USERRA can be found at:
http://www.dol.gov/vets/usc/vpl/usc38.htm

 

[kat30s]

he recived pay from the military only - not his employer, which was always the case, for his weekend duty. (for which he was there Fri thru Sun) and for his 2 weeks every summer.

 

[JETX]

he recived pay from the military only - not his employer, which was always the case, for his weekend duty. (for which he was there Fri thru Sun) and for his 2 weeks every summer.

Clearly, you do NOT understand. What you are describing is the normal duty shift for reserves. Presumably, what the employer is considering is "he was called in for a 6 week training program with the military."
Did he receive ANY company pay during that 6 weeks?? If so, then presumably it was charged against his vacation time.
If not, then you have the statute already provided in my earlier post.

However, the BOTTOM line to this is NOT vacation pay. It is the fact that he decided to go against his employers decision to NOT allow the vacation TIME and went anyway!! That is 'insubordination'.... and is cause for termination. And, somehow, he managed to collect unemployment for a 'for cause termination' and the state rightfully 'wants it back'!!

 

[kat30s]

I do understand - I did say he did not get company pay - military pay only. i guess I just misstated that fact - sorry.

You gave me the info I was looking for and I appreciate it. i will research the link you gave me further. Have an awesome day.