News & Events - Newsletters
Workplace Wave, May 2003
The following are exerpts from this month's newsletter.
Tips on Employees Returning from Military Leave
As some of the armed services personnel are completing their active duty service, their employers must prepare for their return to work. There are three primary issues to address (aside from the employee benefits issues which are beyond the scope of this article).
1. Reporting Back to Work. The time limits for returning to work depend on the duration of the employee's military service. For employees who were in service from 1 to 30 days, they must report back to work by the beginning of the first regularly scheduled work day. For service from 31 to 180 days, the employee must submit an application for reemployment, if required by the employer, no later than 14 days after completion of service. For service over 180 days, an application must be submitted no later than 90 days after completion of service. These deadlines are extended up to two years for persons who are hospitalized or convalescing due to a disability incurred or aggravated during the military service.
2. Placing An Eligible Employee in a Job. The position into which the returning employee is reinstated depends on the length of the military service. For service of 90 days or less, the employee must be promptly reinstated (in order of priority) to the job he or she would have held had the employee remained continuously employed or, if not qualified for that position, to the position the employee held at the beginning of the military service. The employer does not have the option of offering other jobs of equivalent seniority, status and pay. If the employee is not qualified (despite reasonable efforts the employer takes) for either position, he or she is to be reemployed in a position that is the nearest approximation to the positions described above, with full seniority.
For service of more than 90 days, the employee is to be reinstated in the same manner as above, except that the employer may alternatively reinstate to a position of like seniority status and pay. If the employee is not qualified for either position, the reinstatement may be to a nearly approximate position of lesser status and pay with full seniority.
Note that the determination of whether the employee is qualified includes whether the employee becomes qualified after reasonable efforts by the employer. Thus, employers must provide refresher training and any training necessary to update a returning employee's skills due to technological advances, unless to do so would cause undue hardship.
The position with the highest priority reflects the escalator principle which requires that each returning service member steps back onto the seniority escalator at the point the employee would have occupied if the person had remained continuously employed. It may not be the same job the person previously held; it could be a higher or lower level position and could even mean that the position has been eliminated.
Reemployment is not required if an employer's circumstances have changed so much that it would be impossible or unreasonable. An example is a layoff that would have included the person serving military duty.
3. Exceptions to At-Will Employment. Once the employee has returned to work, employers must proceed with extra caution in any termination decisions. For certain periods of time, these employees may only be terminated "for cause," and thus, employers lose a strong defense in wrongful termination lawsuits. For employees who have served less than 180 days, the employer may not discharge the employee without cause for six months after the date of reinstatement. For employees who served more than 180 days, the employer may not discharge the employee without cause for one year after the reinstatement date.
Employee Relations Skill Building
Although "employee relations" is sometimes thought of as a series of programs geared towards employees, it is also an important skill that involves coaching, advising, problem-solving, and acting as a neutral liaison with managers and staff employees. A solid background in key employment laws for the jurisdictions in which the organization operates is crucial, yet keeping up with the continuously evolving legal issues is a challenge.
To meet the challenge, successful organizations provide on-going periodic educational and skill development training sessions for their employee relations specialists. Based on the group's experience level and the particular needs of the organization, educational topics will range from disability accommodations to the latest on time off issues to recent legislative developments. Skill development topics may include how to conduct workplace investigations and how to assist managers in developing effective documentation. Some organizations find it useful to conduct training in an informal manner through roundtable debriefings on different employee relations scenarios, in which employees can share and learn from each other's experiences.
Whatever the form, successful organizations are well-served by investing in the development of well-trained employee relations specialists.