If you employ military reservists, your plans to support your employee’s attendance at weekend drill duty may now be thwarted. Due to the government shutdown, your service member employee may not be in combat boots this weekend (or this month). Although a number of Iowa National Guard technicians were recalled to duty from furlough on October 7, this recall did not apply to many service member employees with full-time jobs in the private sector. Although some units are postponing duty, other service members are reporting for duty as ordered. This can be confusing to service members and employers alike, and much of the impact of the shutdown depends on the service members’ military status and specific funding streams. Consequently, your employee’s scheduled drill or training may be postponed this month and in the future until the government shutdown resolves. Here are some tips for addressing issues that may arise, consistent with the Uniformed Services Employment and Reemployment Rights Act (USERRA):
• How do you know if your service member employee is affected? Ask him or her. Open communication on the developing situation is best. Asking your service member employee whether his or her schedule has changed is acceptable and encouraged under the law. Be prepared to make scheduling adjustments as you must release the service member for any scheduled (or rescheduled) duty. You may also contact the unit’s Commander to verify schedule changes or to determine if there is any additional information he or she can provide.
• Is the employee required to provide you with notice of changes to his or her duty? Yes. While your employee has a duty to keep you informed about his or her military duty, please keep in mind your employee may not know whether drills are postponed or when or if any postponed duty will be rescheduled. Service members should be providing you as much information about schedule changes as reasonably practicable under the circumstances.
• How can you prepare for a continuing change in plans for your business and your service member employee? Service member employees are entitled to flexibility with postponed or rescheduled duty. Changes may be announced at the last minute and may be in the form of an oral notice or a “Commander’s letter.” These are legally proper forms of notification in these circumstances and you should not expect to see “white paper” or hard copy military orders, for example. In some circumstances, these changes may benefit your business as the service member employee may now be available to cover an additional shift or hours this month. Also, some service member employees may be looking for additional hours, given that postponed duty equals postponed military pay.
• What should you expect as an employer moving forward? If your employee’s military duty is rescheduled, some of the duty may overlap with typical private sector “work days.” For example, where a service member’s weekend drill duty may not have previously affected his or her work hours or your schedule because this employee works a traditional Monday through Friday work week, a service member may now be required to conduct the postponed duty on a Monday or Friday or four days in a row. This could happen as early as November’s previously scheduled drill weekend. Under the law, employers must accommodate these changes and may not discriminate against their service member employee.
For more information regarding USERRA's requirements, your military leave employment policy, and employee benefits questions, contact Nyemaster Goode's attorneys at 515-283-3100 or www.nyemaster.com.