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If I join the National Guard, can my current employer fire me?

 
 
Reply Tue 13 Jul, 2010 08:49 am
I've been pondering joining the national guard for several years. One of the problems is that the salary is a joke, so I've been reluctant.

I heard recently however, that employers are not legally allowed to fire or penalize employees who get called to active duty. I'm unsure however, if this law (it's called the USERRA) only applies to people who were military before becomming employed by their current employer. I would be someone who is signing up for the military AFTER being employeed by my employer for over 10 years.

Anyone have any experience with this?
 
PUNKEY
 
  3  
Reply Tue 13 Jul, 2010 12:50 pm
Funny you should ask - I just returned from a Family Deployment conference. A relative is deploying to Iraq. He is in the National Guard. (Military Police)

Find the local National Guard armory and ask for the phone number to the ESGR. That is a group who helps soldiers with employment issues.

No, your employer is NOT allowed to fire you. Your job must be held for you IF you deploy. If you just have to attend weekend training, then you must imform your employer and he/she must let you attend these weekends.

0 Replies
 
tycoon
 
  1  
Reply Tue 13 Jul, 2010 03:22 pm
Interesting question, here's the phone number for ESGR: 1-800-336-4590. You can also contact them online.

http://www.esgr.org/Site/Contact/tabid/229/Default.aspx

I have a sneaking suspicion that employers can choose to participate or not. Hope that isn't true. Please keep us informed.
PUNKEY
 
  1  
Reply Tue 13 Jul, 2010 04:03 pm
No - they can NOT choose to participate. It's the law!

These guys are sent away from their families for 18 months. Broke my heart to see husband, wife and two kids knowing that Daddy is being sent away to serve his country. The least we can do is to be sure they have their job when they return.
0 Replies
 
Cycloptichorn
 
  1  
Reply Tue 13 Jul, 2010 04:11 pm
@maporsche,
maporsche wrote:

I've been pondering joining the national guard for several years. One of the problems is that the salary is a joke, so I've been reluctant.

I heard recently however, that employers are not legally allowed to fire or penalize employees who get called to active duty. I'm unsure however, if this law (it's called the USERRA) only applies to people who were military before becomming employed by their current employer. I would be someone who is signing up for the military AFTER being employeed by my employer for over 10 years.

Anyone have any experience with this?


You are aware that you can be sent to the war zone?

Cycloptichorn
ossobuco
 
  1  
Reply Tue 13 Jul, 2010 04:17 pm
I wonder if any of this is related to the size of the firm. I've operated in my design life in small firms, and if I had one employee and he or she afterwards signed up to the National Guard and then went off for a year, I'd be up a creek. Seems constraining to the small firm (which I understand Maporsche doesn't work for).

So, I'll just follow this, and see what people say re how all this works.
Butrflynet
 
  1  
Reply Tue 13 Jul, 2010 05:07 pm
@maporsche,
http://www.dol.gov/vets/programs/userra/userra_fs.htm
VETS USERRA Fact Sheet 3

JOB RIGHTS FOR VETERANS AND RESERVE COMPONENT MEMBERS

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA 38 U.S.C. 4301-4335)

The Department of Labor, through the Veterans' Employment and Training Service (VETS), provides assistance to all persons having claims under USERRA.

The Uniformed Services Employment and Reemployment Rights Act (USERRA) clarifies and strengthens the Veterans' Reemployment Rights (VRR) Statute.

USERRA protects civilian job rights and benefits for veterans and members of Reserve components. USERRA also makes major improvements in protecting service member rights and benefits by clarifying the law, improving enforcement mechanisms, and adding Federal Government employees to those employees already eligible to receive Department of Labor assistance in processing claims.

USERRA establishes the cumulative length of time that an individual may be absent from work for military duty and retain reemployment rights to five years (the previous law provided four years of active duty, plus an additional year if it was for the convenience of the Government). There are important exceptions to the five-year limit, including initial enlistments lasting more than five years, periodic National Guard and Reserve training duty, and involuntary active duty extensions and recalls, especially during a time of national emergency. USERRA clearly establishes that reemployment protection does not depend on the timing, frequency, duration, or nature of an individual's service as long as the basic eligibility criteria are met.

USERRA provides protection for disabled veterans, requiring employers to make reasonable efforts to accommodate the disability. Service members convalescing from injuries received during service or training may have up to two years from the date of completion of service to return to their jobs or apply for reemployment.

USERRA provides that returning service-members are reemployed in the job that they would have attained had they not been absent for military service (the long-standing "escalator" principle), with the same seniority, status and pay, as well as other rights and benefits determined by seniority. USERRA also requires that reasonable efforts (such as training or retraining) be made to enable returning service members to refresh or upgrade their skills to help them qualify for reemployment. The law clearly provides for alternative reemployment positions if the service member cannot qualify for the "escalator" position. USERRA also provides that while an individual is performing military service, he or she is deemed to be on a furlough or leave of absence and is entitled to the non-seniority rights accorded other individuals on non-military leaves of absence.

Health and pension plan coverage for service members is provided for by USERRA. Individuals performing military duty of more than 30 days may elect to continue employer sponsored health care for up to 24 months; however, they may be required to pay up to 102 percent of the full premium. For military service of less than 31 days, health care coverage is provided as if the service member had remained employed. USERRA clarifies pension plan coverage by making explicit that all pension plans are protected.

The period an individual has to make application for reemployment or report back to work after military service is based on time spent on military duty. For service of less than 31 days, the service member must return at the beginning of the next regularly scheduled work period on the first full day after release from service, taking into account safe travel home plus an eight-hour rest period. For service of more than 30 days but less than 181 days, the service member must submit an application for reemployment within 14 days of release from service. For service of more than 180 days, an application for reemployment must be submitted within 90 days of release from service.

USERRA also requires that service members provide advance written or verbal notice to their employers for all military duty unless giving notice is impossible, unreasonable, or precluded by military necessity. An employee should provide notice as far in advance as is reasonable under the circumstances. Additionally, service members are able (but are not required) to use accrued vacation or annual leave while performing military duty.

The Department of Labor, through the Veterans' Employment and Training Service (VETS) provides assistance to all persons having claims under USERRA, including Federal and Postal Service employees.

If resolution is unsuccessful following an investigation, the service member may have his or her claim referred to the Department of Justice for consideration of representation in the appropriate District Court, at no cost to the claimant. Federal and Postal Service employees may have their claims referred to the Office of Special Counsel for consideration of representation before the Merit Systems Protection Board (MSPB). If violations under USERRA are shown to be willful, the court may award liquidated damages. Individuals who pursue their own claims in court or before the MSPB may be awarded reasonable attorney and expert witness fees if they prevail.

Service member employees of intelligence agencies are provided similar assistance through the agency's Inspector General.


http://www.dol.gov/vets/programs/userra/Final_USERRA_Poster.pdf

Page 20 - 24

YOUR RIGHTS UNDER USERRA
A. THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT
USERRA protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service or certain types of service in the National Disaster Medical System. USERRA also prohibits employers from discriminating against past and present members of the uniformed services, and applicants to the uniformed services.

B. REEMPLOYMENT RIGHTS
You have the right to be reemployed in your civilian job if you leave that job to perform service in the uniformed service and:
• you ensure that your employer receives advance written or verbal notice of your service;
• you have five years or less of cumulative service in the uniformed services while with that particular employer;
• you return to work or apply for reemployment in a timely manner after conclusion of service; and
• you have not been separated from service with a disqualifying discharge or under other than honorable conditions.

If you are eligible to be reemployed, you must be restored to the job and benefits you would have attained if you had not been absent due to military service or, in some cases, a comparable job.

C. RIGHT TO BE FREE FROM DISCRIMINATION AND RETALIATION
If you:
• are a past or present member of the uniformed service;
• have applied for membership in the uniformed service; or
• are obligated to serve in the uniformed service;
then an employer may not deny you
• initial employment;
• reemployment;
• retention in employment;
• promotion; or
• any benefit of employment.
because of this status.

In addition, an employer may not retaliate against anyone assisting in the enforcement of USERRA rights, including testifying or making a statement in connection with a proceeding under USERRA, even if that person has no service connection.

D. HEALTH INSURANCE PROTECTION
• If you leave your job to perform military service, you have the right to elect to continue your existing employer-based health plan coverage for you and your dependents for up to 24 months while in the military.
• Even if you don’t elect to continue coverage during your military service, you have the right to be reinstated in your employer’s health plan when you are reemployed, generally without any waiting periods or exclusions (e.g., pre-existing condition exclusions) except for service-connected illnesses or injuries.

E. ENFORCEMENT
• The U.S. Department of Labor, Veterans’ Employment and Training Service (VETS) is authorized to investigate and resolve complaints of USERRA violations.

For assistance in filing a complaint, or for any other information on USERRA, contact VETS at 1-866-4-USA-DOL or visit its Web site at http://www.dol.gov/vets. An interactive online USERRA Advisor can be viewed at http://www.dol.gov/elaws/userra.htm. In some cases involving USERRA claims against Federal executive agencies, a complaint filed with VETS before September 30, 2007, may be transferred to the Office of Special Counsel for investigation and resolution pursuant to a demonstration project established under Section 204 of the Veterans Benefits Improvement Act of 2004, Pub. Law No. 108-454 (Dec. 10, 2004).
• If VETS is unable to resolve a complaint that has not been transferred for investigation under the demonstration project, you may request that your case be referred to the Office of Special Counsel for representation.
• You may also bypass the VETS process and bring a civil action against an employer for violations of USERRA.

The rights listed here may vary depending on the circumstances. The text of this notice was prepared by VETS, and may be viewed on the internet at this address: http://www.dol.gov/vets/programs/userra/poster.htm. Federal law requires employers to notify employees of their rights under USERRA, and employers may meet this requirement by displaying the text of this notice where they customarily place notices for employees.
U.S. Department of Labor
Veterans’ Employment and Training Service
1-866-487-2365
Signed at Washington, DC this ______ day of December, 2005.
________________________________
Charles S. Ciccolella
Assistant Secretary for Veterans’ Employment and Training
Butrflynet
 
  1  
Reply Tue 13 Jul, 2010 05:10 pm
@Butrflynet,
This is a FAQ addressing the same info in the above fact sheets from the DOL.



http://www.military.com/benefits/legal-matters/userra/faq


Here are questions addressing the national guard, specifically:

2. Who is eligible for reemployment rights under USERRA following military service?

The individual must meet five conditions, or "eligibility criteria." The individual:

* must hold or have applied for a civilian job. (Note: Jobs employers can show to be held for a brief, nonrecurrent period with no reasonable expectation of continuing for a significant period do not qualify for protection.)
* must have given written or verbal notice to the civilian employer prior to leaving the job for military training or service except when precluded by military necessity.
* must not have exceeded the 5-year cumulative limit on periods of service.
* must have been released from service under conditions other than dishonorable.
* must report back to the civilian job in a timely manner or submit a timely application for reemployment. (generally, Section 4312).

3. Are there reemployment rights following voluntary military service? State callups?

USERRA applies to voluntary as well as involuntary military service, in peacetime as well as wartime. However, like the VRR law, USERRA does not apply to state callups of the National Guard for disaster relief, riots, etc. Any protection for such duty must be provided by the laws of the state or territory involved. (Section 4303).
0 Replies
 
maporsche
 
  1  
Reply Tue 13 Jul, 2010 06:41 pm
@Cycloptichorn,
I'd have to be some kind of stupid to not understand that Cyclops. Thx for checking though.
maporsche
 
  1  
Reply Tue 13 Jul, 2010 07:03 pm
@ossobuco,
Not sure osso...you're right though, my firm employs over 4k people in my office alone. I'm just a small cog in the machine.

My company actually has a policy where they will supplement any pay difference between my military pay and my current salary for up to 5 years of deployment. Which means I could join the NatGuard and make my current salary (over $80k/yr). That's a big hurdle gone for me joining the Guard. The policy doesn't specifically say anything about joining the military after you've been hired, but it doesn't rule it out either. I was hoping to get a better understanding of the process before I risk going to human resources with questions.

I'll let you know how/if this progresses.

JPB
 
  1  
Reply Tue 13 Jul, 2010 07:06 pm
@maporsche,
reading along...
0 Replies
 
maporsche
 
  1  
Reply Tue 13 Jul, 2010 07:07 pm
@Butrflynet,
Thanks Butrflynet.

It sounds like, based on this snippet (my highlights):

Quote:
C. RIGHT TO BE FREE FROM DISCRIMINATION AND RETALIATION
If you:
• are a past or present member of the uniformed service;
• have applied for membership in the uniformed service; or
• are obligated to serve in the uniformed service;
then an employer may not deny you
• initial employment;
• reemployment;
• retention in employment;
• promotion; or
• any benefit of employment.
because of this status.


That my employer can NOT fire me if I should choose to join the National Guard.


That's good news.
ossobuco
 
  1  
Reply Tue 13 Jul, 2010 07:07 pm
@maporsche,
I'm interested, not now re my old business (but curious - we had at one point seven people), but just re you and how you go.
0 Replies
 
Cycloptichorn
 
  1  
Reply Tue 13 Jul, 2010 07:15 pm
@maporsche,
maporsche wrote:

I'd have to be some kind of stupid to not understand that Cyclops. Thx for checking though.


I knew you would know, just wondered if you were bothered (but didn't think you would have to for various reasons) or ready to go on that part of it.

Cycloptichorn
maporsche
 
  2  
Reply Tue 13 Jul, 2010 07:20 pm
@Cycloptichorn,
I'm not 'excited' about the possibility of going to a war zone. I would really just prefer to assist within our country and be deployed to help provide support where needed for whatever reasons.

The thought of going to war does not deter me though. I'm confident that I could handle myself very well in that situation.
0 Replies
 
maporsche
 
  1  
Reply Tue 13 Jul, 2010 07:21 pm
@tycoon,
Thank you tycoon. I will give them a call.
0 Replies
 
parados
 
  2  
Reply Tue 13 Jul, 2010 07:23 pm
@maporsche,
They can't fire you because you are in the guard. Plus they have to keep your job for you when you return from being deployed.


It doesn't prevent them from firing you for other causes.
hawkeye10
 
  2  
Reply Tue 13 Jul, 2010 08:03 pm
the answer is not legally, but if you get called up they often will anyways.
0 Replies
 
roger
 
  1  
Reply Tue 13 Jul, 2010 08:08 pm
@parados,
Well, yeah, but he says company policy is that the difference in current pay and military pay will be made up by the company. The company sounds somewhat sympathetic, in my opinion.

Of course, he may be gettin a bit long in the tooth for basic training.
hawkeye10
 
  1  
Reply Tue 13 Jul, 2010 08:10 pm
@roger,
Quote:
Well, yeah, but he says company policy is that the difference in current pay and military pay will be made up by the company. The company sounds somewhat sympathetic, in my opinion
there are some companies who offer outstanding support for our soldiers, the above policy is one that is found in them. The only way to find out about your company is to go talk to some people who went and then came back...what was their experience with the company?
0 Replies
 
 

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