Obligation to Reservists?

December 31, 2007 9:35 AM

What are an employer's legal and ethical obligations to employees who are in the military reserves?

If you own a restaurant that employs about 20 people (including part-timers), and one of them, a reservist, decides to go to a military training session, what are your options as far as filling his position? Originally he was going to do a 2 week training, and now he's decided he wants to go to the full month-long training. He's not being called up- these are voluntary.

Leaving this guy's position open for a full month is pretty much impossible, but training someone to fill it only to bump them in a month isn't great either.

Legally, what are the restaurant's rights as far as filling this guy's position?

posted by small_ruminant to work & money (20 comments total)

He currently works 25 hours a week.
posted by small_ruminant at 9:41 AM on December 31, 2007

"The Uniformed Services Employment and Reemployment Rights Act (USERRA), prohibits discrimination against persons because of their service in the Armed Forces Reserve, the National Guard, or other uniformed services. USERRA prohibits an employer from denying any benefit of employment on the basis of an individual’s membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services. USERRA also protects the right of veterans, reservists, National Guard members, and certain other members of the uniformed services to reclaim their civilian employment after being absent due to military service or training." (Source)
posted by NotMyselfRightNow at 9:42 AM on December 31, 2007

Even if the training is voluntary? He's not being called up. And even if the employee is only part-time?
posted by small_ruminant at 9:43 AM on December 31, 2007

I'm not sure on your ethical or legal obligations, but you probably want to go WAY out of your way for the guy, lest you end up in the newspaper as "the restaurant owner that doesn't support our troops who are sacrificing for our freedom blah blah blah".
posted by deadmessenger at 9:43 AM on December 31, 2007 [1 favorite]

I don't believe FT or PT employment status matters, and I'm fairly positive the voluntary aspect of training is irrelevant:

"Exceptions: There are essentially only two positions that employers may assert if they wish to be relieved of their obligations under USERRA. First is "impossibility," which may apply to situations such as reductions in force. It does not apply to situations where an employer would have to reassign current employees to re-employ the veteran. Second is the defense of "undue hardship." Unlike the defense of impossibility, an employer may assert the defense of undue hardship to justify not having to reassign an employee from his or her current job to accommodate the war veteran. To prove undue hardship, an employer must show that the war veteran is unable to perform the job he or she held prior to being called to active duty. The employer must, however, at least make reasonable good-faith efforts to re-employ the war veteran in a job that is comparable to the former position in both job responsibilities and compensation." (Source)

You should also note that for 12-months from the time of return, the employee can only be fired for cause.

The same article I just cited had a two-sentence blurb that really answers this question better than anything any of us could write, or any law we could reference:

Can we ask our soldiers to deploy to train or fight our wars, and then not get their jobs back when they return? We all have a responsibility.
posted by NotMyselfRightNow at 10:01 AM on December 31, 2007

USERRA explicitly states "active duty" or "required training." It also states that you have to return in a timely manner after completion of the tour of duty or training (less than 31 days of service: by the beginning of the first regularly scheduled work period after the end of the calendar day of duty plus time required to return home safely. If this is impossible, then as soon as possible). I think you need to determine if the entire thing is voluntary or some of the training is required...
posted by MarkAnd at 10:03 AM on December 31, 2007

(You should obviously consult with someone who knows more than I do about employment law. There are confusing voluntary/involuntary, required/not required distinctions here and probably quite a lot of actual cases.)
posted by MarkAnd at 10:07 AM on December 31, 2007

Thinking about it more - Unless things have changed in the 15 years or so since I've last worked in a restaurant, employee turnover is MASSIVE in that business. You can pretty much expect to lose someone to attrition during the time he'll be away. Just hire someone as he's leaving, and hope that someone leaves of their own accord while he's gone.
posted by deadmessenger at 10:11 AM on December 31, 2007

Consult an employment lawyer in your jurisdiction.
posted by dirtynumbangelboy at 10:17 AM on December 31, 2007

I think deadmessenger has it. There's no reason to spend money on a lawyer. Even if the lawyer tells you that you can legally do what you want, it's not a good idea, and may be unnecessary if someone leaves during the month.
posted by grouse at 10:21 AM on December 31, 2007

Turnover is not massive at this establishment- I think that varies from restaurant to restaurant, though maybe not as an industry as a whole.
posted by small_ruminant at 10:31 AM on December 31, 2007

You can read the USERRA here.

Definitions are at 38 U.S.C. § 4303, and includes: (13) The term “service in the uniformed services” means the performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority and includes active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, a period for which a person is absent from a position of employment for the purpose of an examination to determine the fitness of the person to perform any such duty, and a period for which a person is absent from employment for the purpose of performing funeral honors duty as authorized by section 12503 of title 10 or section 115 of title 32.

Nondiscrimination provisions are at 38 U.S.C. § 4311. Leave and reinstatement provisions are at 38 U.S.C. § 4312.

My understanding is that an employer can replace an employee who is absent due to service in the uniformed services, but that the employee has reinstatement rights if he or she returns within 5 years. There are also a number of exceptions such as undue hardship, reassignment is "impossible or unreasonable because of a change in an employer’s circumstances," and/or that the original employment was temporary.

If you are really thinking of not granting the leave, you should definitely consult an attorney (and I don't always say that). This is actually a really tricky area of law -- there are aspects to the reinstatement rights that are complicated, and the exceptions have not really been fleshed out by the caselaw. Also there is a correllary state law at California Military and Veterans Code §§ 394, 394.5, 395, and 564.
posted by ClaudiaCenter at 10:32 AM on December 31, 2007 [1 favorite]

Thanks, ClaudiaCenter- I think that's the info I needed.
posted by small_ruminant at 10:46 AM on December 31, 2007

Have you considered hiring a temp?
posted by mazienh at 10:47 AM on December 31, 2007 [1 favorite]

I am an Army reservist.

"Voluntary training" is still required training. "Voluntary deployments" are still required deployments. If the Army cuts orders for him, his presence is required. (Even if he asked to go.) His responsibility is to tell you as such, and return when his orders end.

While you do not have to pay him, you cannot fire him, and you can't hold his duty against him. He's entitled to his raises, promotions or whatever. And if he feels that you are violating his rights, he can sue you, and the Army will pay for it.

Understand also that from his point of view, it sucks to have to do all of this.

It may be an inconvenience to you as an employer, but for fear of sounding like a propaganda poster, we're at war right now. Your contribution to the war effort is to let this guy get the training that may save his life.

I encourage all of my soldiers to attend every school they can, because it's a lot harder to learn something when you're being shot at.
posted by rentalkarma at 12:29 PM on December 31, 2007 [4 favorites]

Leaving aside the issue of any legal requirements, here's my two cents: this guy is wearing the uniform of our nation, and will - if not now - someday put his life in danger on behalf of America. Holding a job for him is the RIGHT thing to do. Maybe you can turn his service into some sort of "conversation" with your staff -- what does his training entail, why did he join, what unique experiences has he had in uniform either deployed or at home, etc.
posted by davidmsc at 1:25 PM on December 31, 2007 [1 favorite]

rentalkarma- if it's not exactly voluntary, why is it he decided to go for the month rather than the 2 weeks he originally said?

I'm going to pass on the opportunity to debate whether or not our current admin's utilization of the military is "on behalf of America" and just point out that I am not the employer- I am asking for a friend of mine who's asking for her employer.
posted by small_ruminant at 1:57 PM on December 31, 2007

It might not be voluntary any more once you've agreed to it. The same way that it's voluntary to sign up for the reserves, but once you are in there are many involuntary things you have to do -- so too with training, you sign up for the training and then it becomes your duty to go and do the training. He couldn't stay home the day the training starts without getting in trouble.

Ethically, these laws are meant to protect reservists so that they are free to train and deploy as needed, and if this person is pursuing some specialization or training that furthers his abilities to serve in the military and stay alive, even if he's technically volunteering for it, I'd say one would best not to try splitting technical hairs trying to fire him. I mean, you're volunteering for the entire thing to begin with.

I'm as against the way the military is being currently used as the next guy, but reservists are the people who are keeping my ass from being drafted, so I'd give them every benefit of the doubt and all the latitude they needed.
posted by voidcontext at 2:15 PM on December 31, 2007

You will want to browse the website of the Employer Support for Guard and Reserve program. They have FAQs and information concerning USERRA issues and points of contact for local volunteer experts if you have questions.
posted by SenshiNeko at 5:12 PM on December 31, 2007 [1 favorite]

The other reason to go with deadmessenger's suggestion of simply replacing him now is that even if you simply replace him because you need that 20th employee while he's gone, and he comes back and wants his job... at worst it's 21 instead of 20 employees, where that 21st employee is not needed but you are legally obliged to take him back. That's not nothing, but it means all the restaurant owners are essentially risking is having to support a 5% increase in payroll costs for the time before attrition removes a different employee, or he quits (I post this knowing that if that count of 20 includes part-timers, the number of full-time salaries is < 20).

An alternate solution: with him likely having 3-4 shifts a week (25 hours) and with 20 employees in a restaurant where the jobs done are fairly fungible (i.e., unless it's a high-end restaurant and you're talking about the chef, the various staff can generally manage to do the other's jobs), if you're sure he's going to be back in one month, why not see if the 20 people can collectively each pitch in ~1 extra shift for that month to cover his missed time? They give up one day that month and get some overtime and spending cash which could be nice just after the holidays, you get to avoid either the financial hassle or PR mess of his return if you hire a replacement for one month.
posted by hincandenza at 6:27 PM on December 31, 2007