3 ways managers break the law on workers with military obligations

Like it or not, the nation is living through a time when plenty of employers have employees leaving temporarily for military training or overseas military duty.

Illustrating the dimensions of the issue, it’s estimated that one-third of current military personnel – including National Guard and Reserve members who have civilian jobs, too – have been deployed.

That means you’re likely to have employees who have military obligations that will take them away from work – for days, weeks or months.

The legal implications
So if you haven’t already made the acquaintance of the Uniformed Services Employment and Reemployment Rights Act, or USERRA, you may want to review its implications for your organization.

As its name indicates, USERRA safeguards the civilian employment rights of military personnel, and also guarantees that they can get their civvy jobs back – under most circumstances – when they return from military training or duty.

It sounds simple enough. But in practice, USERRA is a law loaded with dynamite and just waiting to blow up unwary managers.

And so HR has the responsibility to warn supervisors of the traps that await them in their dealings with employees who have military commitments.

Here are three of those pitfalls:

1. Documentation overdemand
Supervisors have to make up work schedules and make sure their departments are properly manned.

So they’re naturally impatient with employees who miss work without notice. And in most organizations, they have attendance policies to fall back on, so they can rein in and discipline people who don’t give adequate warning that they’re not going to show up.

The problem with USERRA is that the law, while requiring employees to tell their employers ahead of time about military-related absences, doesn’t specify how much notice employees have to give, or how they have to give it.

In other words, the departing military service member doesn’t have to give written notice – oral is OK – and only has to tell the employer as soon as possible.

That leaves employees a lot of room for maneuver, and risks frustrating supervisors who learn of an absence just before it happens. But it’s important that HR advise supervisors not to react to short notice by telling the employee, for instance, that he’ll be punished if he leaves, or doesn’t furnish a note from his commanding officer. Doing either of these is a clear violation of USERRA.

2. Performance assumptions
Suppose a manager is hiring for a job that entails a lot of weekend overtime, and a qualified applicant mentions that she has National Guard obligations that will take her away at least one weekend per month. Plus, she says, she’ll have to go if her unit is deployed overseas.

It might be understandable if the manager said, “Thanks but no thanks” and looked for another candidate.

But unless the manager finds another candidate who is clearly superior to the one with Guard obligations, he’s probably breaking the law by refusing to hire her.

His mistake? He assumed that her military service would so interfere with her performance of the job as to make her an undesirable candidate.

Managers make a similar mistake if they refuse to promote a deserving employee merely because of assumptions about the work impact of his or her military service. That’s illegal, too.

3. Reinstatement slip-ups
The third ticklish point is the reinstatement of returning service members. It’s easy for managers to mishandle it and break the law.

Three ideas are key when an employee returns from military service:

• Don’t unduly delay the reinstatement. This may be a temptation for a manager who, say, hired a replacement while the service member was away. Managers must ordinarily reinstate service members within a few days.
• Place them in the right job. Generally, managers should put returning service members back in the jobs they left, even if it’s inconvenient. But note: If a service member would have received an automatic step-up in job grade but for his absence, the manager must place him in that job, not the one he left.
• Retrain if necessary. If equipment was upgraded while the service member was gone, or new procedures were put in place, the manager must make sure the person is trained on the changes. If the manager fails to retrain the person and then disciplines him for poor performance, it’s a USERRA violation.

See USERRA regulations at: www.dol.gov/compliance/laws/comp-userra.htm#applicable_laws