Yesterday, we looked at a case involving a returning military service member who was terminated upon coming back to work. While that particular employee lost his case against his supervisor, the general rule is that you must reinstate returning service members. Today, we’ll look at some exceptions to this rule.
Exceptions to the Reinstatement Obligation
Under the USERRA and the state Military and Veterans Code, members of the armed services and the reserves generally must be reinstated to their civil jobs without losing seniority or benefits on returning from service.
However, you aren’t required to reinstate an employee after military service if:
1. Your circumstances have so changed that reinstatement is impossible or unreasonable (for example, a reduction in force that would have terminated his or her employment occurred during the employee’s absence).
2. Reinstatement would impose an undue hardship because the employee has a service-connected disability.
3. The employment the worker left was for a brief, nonrecurrent period, and the employee didn’t have a reasonable expectation that the employment would continue indefinitely or for a significant period. (Note that the discrimination and retaliation provisions still apply to such an employee.)
4. The employee didn’t provide reasonable notice of the desire to return, in violation of your established policy.
5. The employee’s separation from the military was dishonorable, based on bad conduct, or “other than honorable.”
Confused about an important leave-related issue? Don’t be.
Don’t Forget
Employees returning from military service must be reemployed in the job they would have held if they weren’t on military service, with the same seniority, status, and pay as well as other rights and benefits determined by seniority.
Leave Mistakes: Better Prevented Than Remedied
The best way out of a sticky leave-related dispute is to avoid getting embroiled in it in the first place. And to do that, you need current, complete info on the web of state and federal leave laws that apply to you in California—as well as clear explanations of how they interact with one another.
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- Employee notifications of illness, injury, or disability
- Responding to leave requests
- Computing leave entitlement duration
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- Leave for military members’ families
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