Q. One of our employees was onfor six months. He will be reinstated at the same pay and position. While he was gone, all employees in his department received a 4% pay raise in recognition for their hard work in the past year. Must we pay him that raise? — J.T., Florida
A. Yes. The Uniformed Services Employment and Re-employment Rights Act (USERRA) requires that eligible employees be made whole upon return, as if they’d never taken the leave. If a pay raise is merit or performance-based, then it must be given upon re-employment if the employee would have attained the raise with reasonable certainty had he or she remained continuously employed during the period of military service.
In this case, because everyone in his department received the raise, it’s reasonably certain this employee would also have attained the raise had he not taken military leave. Plus, the raise must be provided in full; meaning, you can’t consider the six months on military leave to prorate the raise.