The tricky part is what happens when employees return from their
stint in the military, especially if their absences were so long
that you had to fill their positions. They must get their jobs back
or be re-employed in the position they would have attained if they
had been continuously employed. Suppose an employee would have been
eligible for promotion at the end of a review cycle but was called
up for duty first. When the employee returns, you can't pass
him or her over for the promotion merely because of the time lost
to military service. "Congress intended that service members
not miss out on opportunities because they were called up,"
Branciforte says.
An employee who won't qualify for a promotion must get his
or her old job back, or the nearest approximation to it. If the
employee was gone longer than 90 days and a close approximation
isn't available, you may offer a job of "like
status." But the employee is entitled to the seniority and
vacation he or she would have accrued if he or she hadn't been
called up. Also, a worker who's been reinstated after military
service may be terminated only for cause for a given period
determined by the amount of time spent in the service.
Be aware that the federal law is just a platform, and every
state imposes additional responsibilities. Your state might expand
the length of time military employees may be gone and still get
their jobs back, include the state national guard in the protected
class, or require less notice from employees about coming military
service. Check with your attorney about your state's law.
Content Continues Below
The Patriots
Employers rarely violate military leave laws. Most likely
that's not out of fear of the penalties, which include
compensation for lost wages and benefits and, if the violation is
willful, an equal amount as liquidated damages. "Military
leave questions arise during times of intense patriotism,"
Branciforte says. "It's more of a road map for employers
on what to do when [workers] come back. Once employers are
informed, they follow the law."
Still, if you have a very small business, it's probably
impossible to keep someone's job open for months or years.
Consider filling it with a temporary employee. "[The military
employee] may come back within 90 days, and you'd be
stuck," Branciforte says. "You'd have to fire someone
to give the [employee] their job back."
What about the cost? The SBA offers the Military Reservist
Economic Injury Disaster Loan Program, which can help eligible
small businesses meet ordinary operating expenses associated with
having an essential employee recalled to active duty. Beyond that,
following these laws is just a matter of doing your part.
Steven C. Bahls, dean of Capital University Law School in
Columbus, Ohio, teaches entrepreneurship law. Freelance writer Jane
Easter Bahls specializes in business and legal topics.
Contact Source
Page
1 | 2