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Properly laying off a USERRA protected employee California

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  • Properly laying off a USERRA protected employee California

    I found the laws listed below, but, I need to know how to properly lay off this employee, eliminating all risks. This employee was on military leave for over 180 days and returned as of 02/18/2010. We are moving foward with discharge under probable cause... lay-off. Your help is appreiated.

    Sec. 1002.247 Does USERRA provide the employee with protection against discharge?

    Yes. If the employee's most recent period of service in the uniformed services was more than 30 days, he or she must not be discharged except for cause--

    (a) For 180 days after the employee's date of reemployment if his or her most recent period of uniformed service was more than 30 days but less than 181 days; or,

    (b) For one year after the date of reemployment if the employee's most recent period of uniformed service was more than 180 days.

    Sec. 1002.248 What constitutes cause for discharge under USERRA?

    The employee may be discharged for cause based either on conduct or, in some circumstances, because of the application of other legitimate nondiscriminatory reasons.

    (a) In a discharge action based on conduct, the employer bears the burden of proving that it is reasonable to discharge the employee for the conduct in question, and that he or she had notice, which was express or can be fairly implied, that the conduct would constitute cause for discharge.

    (b) If, based on the application of other legitimate nondiscriminatory reasons, the employee's job position is eliminated, or the employee is placed on layoff status, either of these situations would constitute cause for purposes of USERRA. The employer bears the burden of proving that the employee's job would have been eliminated or that he or she would have been laid off.

  • #2
    You can discharge them for cause - a lay off would be for cause. However; as the regulation notes: "(b) If, based on the application of other legitimate nondiscriminatory reasons, the employee's job position is eliminated, or the employee is placed on layoff status, either of these situations would constitute cause for purposes of USERRA. The employer bears the burden of proving that the employee's job would have been eliminated or that he or she would have been laid off."

    Note the last sentence.
    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

    Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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    • #3
      You can lay that person off. Just be sure that you can establish with reasonable certainty that you are not laying that person off due to their military service.

      The courts are really pursuing USERRA violations and coming down very hard on people who violate it.

      FWIW: I dont disagree with the law but I do know it can be burdensome on employers.
      We have a guy who appears to go to every school he can. Gives us one day's notice and then the 2 week absence turns into 6 months.
      I find that the harder I work, the more luck I seem to have.
      Thomas Jefferson

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