I was at a SHRM meeting recently and the topic of USERRA was covered by a great group of individuals from the ESGR. While this was a great review and helped to solidify some knowledge most of us already had, one topic came up that was not crystal clear: Promoting military employees while they are on active leave.
If you are familiar with the “escalator” principle, it states that a military member shall return to the position they would have been at should they not have left. This means if you left for duty for one year and in this time you should have reached some level of tenure that made you eligible for a pay raise or different title, you would be reinstated at that rate or title. The problem becomes when a promotion opens up while you are gone and you are not the only candidate. This is a tricky one for employers. If you have an opening for this individual and they would have been eligible for it, but they are gone, do you “promote” them and wait for them to get back to actually perform the duties?
Unfortunately, this has not yet been clearly defined by case law. As an employer, you have to answer two questions: Would this person have been promoted if they were here? If not, why not? If the individual is clearly the right person for the job, they just happen to be gone, you have an easy answer. The problem for you as an employer is that you need someone performing the duties right away. Even if the person is not the “clear cut” favorite for this position, you would be safer to promote them and wait for them to return, than for them to return and make their case on why it should have been them. It will be your case against that of one of our brave soldiers who is just returning from active duty. Think about it.
So, what do you do until they return? This is where it really gets sticky. We all know that it is not that you don’t want to promote the person, they are just not here to perform the role. If you promote someone else, you risk legal action. If you promote someone temporarily, you risk a mutiny or losing this other talented individual when they become demoted upon the deployed teammate’s return. My suggestion is to go temporary. Reach out to a local staffing agency and have them help you find a candidate on a contract basis. You have too many risks involved with the other routes. If someone comes in knowing it is a contract assignment and the team knows it is temporary, you can avoid the drama. You will also avoid the potential legal battle when your employee returns from service. And, most importantly of all, you will be able to promote one of the brave men and women who serve our country and get a top notch leader in the process.
Please let us know if you would like to learn more about how our HR resources for small businesses can help you when you encounter issues like this.