Military activation

[dequeendistress]

What is the name of your state? ar

I understand the Federal laws concerning employment and persons called to active military duty...The Veterans Reemployment Rights Act of 1948 (38 USC 2021)

Uniformed Services Employment and Reemployment Rights Act-USSERA

My question is providing you lose an employee for an extended period of time due to military call, and you hire another employee during this time, what responsibilities does the employer have to the new employee when the existing employee is released from duty, if any?

 

[Beth3]

You're referring to the individual you hired to fill in for the person who enlisted or was called for duty? You have no special legal obligation and may discharge him or her if you wish to in order to make room for the returning vet. That said, if they're a good employee (and those are always hard to come by), I'd try and locate another job within the department or company to transfer them into, if that's possible.

 

[dequeendistress]

Yes the question was in reference to the "new" employee to fill the vacancy created.

Thank you for your common sense response, since my common sense must be on leave also.

Trying to cover all the bases in a "sue happy" world.

O-kay this post is five minutes later, let's say the "new" employee's performance is good; as you gave an example: Unfortunately there may not be transfer of job opportunity. My follow up question is, would an employee hired in this type situation automatically be considered an "at will" employee?

Since the federal law exists for the called to duty employee is there a law that protects the employer when filling the vacancy?

One more: When the called to duty employee returns do they have to complete a job application for the job they left, another employee asked me, so I am asking all of you?

*smile* I am even more difficult in person...be thankful

 

[Beth3]

"would an employee hired in this type situation automatically be considered an "at will" employee?" ALL employees are automatically "at will" unless you enter into a specific contractual agreement with them to the contrary or you are in the State of Montana.

"Since the federal law exists for the called to duty employee is there a law that protects the employer when filling the vacancy" Protects them from what? A wrongful termination suit from the employee you hired that you now have to discharge? No, not specifically but your obligations to the employee returning from military duty are quite clear. It will be unfortunate if you have to let employee B go to make room for returning employee A but that does not expose you to any legal liability.

"When the called to duty employee returns do they have to complete a job application for the job they left, another employee asked me, so I am asking all of you?" No. You are not re-hiring the returning vet, you are REINSTATING him or her. The reinstatement must be seamless, as though they never left, including any benefits and wage increases that would have accrued to them had they not been gone.

 

[dequeendistress]

Thank you.

Just a note this was a "what if" situation as we have had "employee A" leave for duty and have not hired "employee B" as of yet.

We are a Federal agency, supervised by the State office and believe me if you call them for advice, you will not get any. Also, we have a set amount of employees, so when "employee A" returns we MUST let the other go.

 

[Beth3]

queen, the fact that you are a federal agency doesn't have any impact on your duty to rehire the departing vet when he returns but it MAY have an impact on whether these are "at will" employees and/or what your obligation is to the replacement employee. Public sector employment can be quite different from the private sector and my experience is all in the latter.

 

[gobonas99]

Just a note this was a "what if" situation as we have had "employee A" leave for duty and have not hired "employee B" as of yet.

We are a Federal agency, supervised by the State office and believe me if you call them for advice, you will not get any. Also, we have a set amount of employees, so when "employee A" returns we MUST let the other go.

Just a thought here - but if you haven't hired the replacement yet, why not advertise the job as a temporary or contract position? That way, the person you are hiring will KNOW that they are not guaranteed employment after the reservist returns home.

-Christina

 

[Beth3]

A suggestion that may make sense Christina, provided this is allowable under whatever federal reg's or rules govern this agency. Of course the enlistee may be gone three years or longer. That's a long time to ask that someone work as a "temp" with no benefits, as well as find someone willing to do so.

 

[gobonas99]

Of course the enlistee may be gone three years or longer.

True, however, unlikely. Also, reservists are usually able to give their employer an idea of how long they are expected to be gone. While this is not set in stone, it gives the employer an idea of how long they will need a replacement for.

In the reserves, typically, while the UNIT may be deployed for 3 years, the individuals who are deployed are rotated (length of the rotation depends on the number of people in the unit, the expected total length of the deployment, and the number of people needed at the deployed location). For example - if the unit is being deployed for 3 years, and there are 200 people in the unit, and they need 100 onsite, then there will (usually) be two rotations, each a year and a half in length. If they only need 50 people onsite, then there will be four rotations, each nine months in length. Individuals can, however, volunteer to stay on for an extra rotation - or even for the entire deployment (these are ususally full-time reservists vs weekend reservists). Obviously, the longer the expected TOTAL deployment, the longer the individual rotations.

A true example: my father has been in the Air National Guard my whole life (full-time reservist). His unit is being deployed to the Mid-East for 90 days. There will be two 45-day rotations. My dad is going with the first rotation that leaves on Thursday, and he will be back at the beginning of December. Even for the gulf war in 1991, my dad's unit was only deployed for 10 months (my dad was only gone for 5 months).

-Christina

 

[cbg]

Also, the husband of a friend of mine was recently hired into a temporary, two year position. He's considered an employee and he has benefits, but he KNOWS that at the end of two years he's history.

 

[dequeendistress]

Clarification: Well an attempt anyway:

"Employee A" military's leave has been for almost a year, we were expecting him back Dec. 22, 2003, BUT we found out today, after verbally informed by "Employee A" that his term has been extended, possibly another year: No confirmation, but looks as if this is what will happen. Due to his absence we have had to compensate by taking on the additional work load, O-kay with me, but another year will cause too many problems. We were considering hiring a person to fill in, and due to government budgets they would probably only be part time... We have had problems in the past with employees due to the government end, meaning: persons feel they have more recourse when they are terminated because of the type job we do. We do have to be extremely cautious.

Next part: Hypothetically- let's say that we find that "employee a" Volunteered to stay on, then the USSERA would not apply-correct?

 

[gobonas99]

Next part: Hypothetically- let's say that we find that "employee a" Volunteered to stay on, then the USSERA would not apply-correct?

I doubt you will find that to be the case. As I said, the people that volunteer for this are typically full-time reservists, like my dad - meaning they work in the reserves as their full-time job. It is rare that "weekend" reservists (aka reservists with outside full-time jobs who only participate in "drill" one weekend a month) volunteer for extended leave.

Also, in my dad's unit at least , you have to volunteer for the extended leave at the beginning of the deployment.

It is definitely NOT unheard of for a reservist to receive new orders mid-way through their deployment saying that they have to stay longer than anticipated.

I do not know how volunteering to stay on would effect USSERA, if at all.

-Christina

 

[dequeendistress]

Ok.

Since I did not dispute anything about the military nor the act to protect the persons ordered to do their duty...I am NOT questioning the fact that leave CAN or MAY be extended. Nor do I question federal jobs and the fact that the employee is guranteed their job back with any pay increase ETC... What I was speaking of is hypothetical:

If someone is on military leave in the beginning and then VOLUNTARILY extends their leave, is the employer OBLIGATED to keep their job?
Do you understand what I mean...kind of like getting the best of both worlds...ALSO before someone jumps on the serving their country bandwagon...the person I was inquiring about is not out of country, but on a US base filling in for others out of country...believe it or not there are people out there who take advantage of things like this...Remember this is hypothetical...in theory etc...

In my original post I said I understood the law, I was taking a step past that to what I was unsure of...
thank you

 

[HomeGuru]

Ok.

Since I did not dispute anything about the military nor the act to protect the persons ordered to do their duty...I am NOT questioning the fact that leave CAN or MAY be extended. Nor do I question federal jobs and the fact that the employee is guranteed their job back with any pay increase ETC... What I was speaking of is hypothetical:

If someone is on military leave in the beginning and then VOLUNTARILY extends their leave, is the employer OBLIGATED to keep their job?
Do you understand what I mean...kind of like getting the best of both worlds...ALSO before someone jumps on the serving their country bandwagon...the person I was inquiring about is not out of country, but on a US base filling in for others out of country...believe it or not there are people out there who take advantage of things like this...Remember this is hypothetical...in theory etc...

In my original post I said I understood the law, I was taking a step past that to what I was unsure of...
thank you

**A: no.

 

[dequeendistress]

sigh...thank you