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What Does The Employer Have To Do When The Employee Returns?
Here is the more difficult part. Joe got called to active duty, and was on military leave for a year. He held a key position that you had to fill in his absence. You hired Sally, who did a great job while Joe was away. Sally is entrenched in the position, she has the most current knowledge and has the most current business relationships on which your company depends. Joe stops by, tells you that he needs a job, and thinks it is only fair that he be permitted to pick up where he left off. Now what?
The law imposes requirements that will, no doubt, cause substantial economic prejudice to many employers (and, for that matter, replacement employees). Obviously, the purpose of the law is to protect the economic interests of those who serve their country, but in the process some employers, particularly small companies, could suffer economically. The highlights:
Based on what is often called the "elevator principle," the general rule is that you are required to re-hire your returning employees to the position they would have attained if they had been continuously employed during the period they were on military leave. If the returning employee is truly unqualified for the promoted position, then you must make reasonable efforts to train the employee. If that is not possible, the employee must be returned to his or her former position, or to another position with equivalent status, seniority and pay;
There are exceptions to the general rule, some of which are subjective and difficult to apply in a predictable way. For instance, an employer may not have to re-hire an employee for military leave in the following instances: the employer's circumstances have changed to the extent that it is impossible or unreasonable to re-hire the employee; the employee could not be re-trained or otherwise re-qualified despite the employer's efforts; the employee's original job was temporary and there was no reasonable expectation that it would continue indefinitely;
When an employee returns from more than six months active duty, he or she cannot be fired without good cause, for a full year. Among other things, good cause includes threats against the employer, interference with employer's business, charges of illegal conduct and conflicts of interest such as establishing a rival company;
If your company undergoes a change of control while the employee is on military leave, the successor employer has the same obligations to the returning employee;
Upon return from military leave, you must reinstate the employee to your retirement plan, make your contribution and allow the employee up to three times the period of leave to make the contributions that would have been ordinarily made but for the period of military service;
Employees who are dishonorably discharged do not receive these legal protections.
Generally speaking, under USERRA, in order to be entitled to re-employment rights, the employer must be given advance notice of the employee's impending military service, either from the employee or an appropriate military officer, unless it is not practical or reasonable to give such notice. Employers may ask to be notified as soon as possible after the employee receives military orders and may request copies of any official papers with regard to the military service. Also, if the employee has the option of choosing when to carry out the military duty, the employer may ask the employee to take the employer's business needs into account when planning leave. However, the employer may not penalize the employee for not complying with the employer's wishes. In addition, there are statutory time limits that define when the employee must apply for re-employment after completion of military service.
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