Returning soldiers entitled to equivalent jobs, but not necessarily their old ones — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily

Returning soldiers entitled to equivalent jobs, but not necessarily their old ones

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in Employment Law,FMLA Guidelines,Human Resources

As the wars in Iraq and Afghanistan show few signs of winding down, the military is relying heavily on citizen soldiers to serve longer and more frequent active-duty assignments. Ten years ago, most members of the National Guard and armed forces reserves needed just a few weeks a year and one weekend per month off for military service. That’s no longer the case, and employers have had to rethink how to manage military employees.

Fortunately, the Uniformed Services Employment and Reemployment Rights Act (USERRA) has now been tested in court, and employers are finding that judges are becoming more flexible when it comes to employers’ rights to manage the work force while soldiers are away.

Gone are the days when employers had to hold the same job open. Employers now can be a little flexible when soldiers return—as long as they provide a position that is roughly equivalent in pay, benefits and seniority.

Recent case: Hillaire Woodward worked for the New York Health and Hospitals Corp. as a quality-assurance manager. She also was a member of the U.S. Army Reserve. For several years, her active duty amounted to one weekend per month and two weeks in the summer. Then came 9/11. Woodward volunteered for active-duty service.

Woodward returned to work after nearly two and a half years. The company placed her in a different position. She received a retroactive pay increase and had the same sort of professional managerial job she had held before. Soon after, she went back on active duty and never returned to work.

Woodward sued, alleging that the job she had been assigned between military stints was not the one she had left.

But the court tossed out her claim. It said the job did not have to be the same one and acknowledged that employers have the right to manage the workplace, including making staffing changes, during military leave. (Woodward v. New York Health and Hospital Corporation, No. 04-5297, ED NY, 2008)

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