Returning to work while on transitional and terminal leave question

Y

yellow dog

PEB Forum Regular Member
So I have an interesting situation and could use some adivice:

I'm in one of the CBWTUs.

Civilian employer wants me to get back to work ASAP, even let me know that if I don't get back soon that they're going to start looking to fill my position but a position will still be available for me somewhere in the company. I want to get back ASAP as I love my position and want to get back into it.

My REFRAD packet is in, but might take another 4-6 weeks to be complete and I'm off of orders. I've worked with my case manager and he's gotten me a memorandum that is authorizing me to go back to work at my civilian job. This is placing me on transitional/terminal leave and I will need to utilize my accrued leave while waiting for my actual REFRAD date. I'm cool with all this so far.

Sent the memorandum in to my employer HR and got the following:

"Great news indeed.....you understand what the offer (my compensation package) will be to you upon your return. We took into consideration both market information, peer equity and miss of merit increases. The package will look like this........The question for me is, what will you be receiving (weekly or monthly) from the government during this transitional leave? We, of course, will make up the difference between what you are receiving and the amount I have noted above. When you are fully released, we will pay you the full packaged as outlined."

This has made me go, "Huh??!" Now maybe they're thinking that they can/should do this since they've been paying me the difference between my military base pay and civilian base pay while I've been on orders. Regardless, can they even do this, basically back out what the military is paying me while I'm on transitional leave and they agree to "re-employ" me?
 
I think you can tell them you are receiving nothing- under this reasoning. If you are on leave, you are not receiving additional pay. If you are being paid for earlier leave accrued while in this status, you are not receiving payment for duty performed currently, but rather for earlier accrued benefits.

Either way, this sounds like a potential violation of Uniformed Services Employment and Re-employment Rights Act. elaws - USERRA Advisor .

It may also be a violation of Federal and State labor laws.
 
If you're taking your military vacation pay (leave), are you saying your employer wants you to work for them full-time while you are receiving your military vacation time, but only pay you the difference - and NOT pay you full civilian wages for your time?

Kinda like how they do that kinda thing when on jury duty?

nwlivewire

Jasons reasoning sounds good to me!
 
Thanks for the quick responses. I don't think there is any malice at my employer HR dept, I just think they've never had to deal with this before and are naive.

Jason, your reasoning makes sense to me. It's even what I was thinking before I wrote this, but I can't find any actual law or statute that refers to this situation. I've seen some stuff under USERA that I think relates to this, specifically:

Rate of Pay
§ 1002.236 How is the employee's rate of pay determined when he or she returns from a period of service?
(b) If the employee is reemployed in the pre-service position or another position, the employer must compensate him or her at the rate of pay associated with the position in which he or she is reemployed. As with the escalator position, the rate of pay must be determined by taking into account any pay increases, differentials, step increases, merit increases, or periodic increases that the employee would have attained with reasonable certainty had he or she remained continuously employed during the period of service.

Could/would the above bolded statement be interpreted to be that they can't back out my military "leave pay?" I'm no lawyer, but it kind of looks like that to me.

I really don't want to talk to HR until I have something concrete to give them about how they're violating the law just in case they continue to go down this track of reasoning. That way I can just shut the door on them if they do.

Quite frankly, I just don't understand their thought process in their email to me. They've never backed out any pay when I've taken vacation to go do my annual training, they don't take it out when I've gone to drills....kind of the same thing if you ask me.

I mean, if they're not going to pay me my full salary for the 60+ days of leave I have at this point, I might as well just stay on vacation for another 60+ days after I receive my REFRAD date. Unfortunately for me, I have problems with that as I really want to get back to work for a variety of reasons, the first of which is I make a lot more money there.
 
nwlivewire said:
If you're taking your military vacation pay (leave), are you saying your employer wants you to work for them full-time while you are receiving your military vacation time, but only pay you the difference - and NOT pay you full civilian wages for your time?
Click to expand...

That's exactly what they're saying. Makes no sense to me.
 
OK, quick update. Sent an email just asking for a little clarification:

ME:
"I guess I'm at a loss as to why I wouldn't be receiving fully pay once I return? I am having to use my leave (vacation) that I have accrued in order to come back to work."

HR response:
"Well, I think because you are on a transitional leave and still on govt payroll. The intention is to keep you whole, of course, and when you are fully returned, you would be fully paid."

That's the extent of both our responses.

I'm at a loss for words right now..............
 
But you are on Vacation pay.

Yes you are still in the military, but you are using your vacation time.

And unless there is a national emergency, your time is your own to do with what you will - legally, anyway.

This leave time ought not to count as something the military is giving you - you have earned this.

Sorry to say this, but it sounds like your company is really penny-pinching - and at your expense and at the governments expense.

Cause basically, it's like they are wanting a free ride off the government dimes you're getting - they want to subsidize their payroll expense of you off time you have earned.

And if you're wholly able to do your work, you ought to be wholly paid!

Sounds sad they think like this.

I'd be so damned mad if a company told me something like this, and if I could afford to do so, I'd tell them I have gone more than half-way and am using my vacation time to work for you instead. So if you can't pay me a full days wage for a full days work, then I think I'll go fishing and return to work when I get my official DD 214.

But in times like these, work is hard to come by. So maybe they think they have you over a barrel.

This just doesn't seem right to me.

And what happens if you are injured on the job - god forbid?

They gonna tell you to go to the Army for your injury, too?
 
Well first off your Case Manager can not authorize you to have a second job while still on Active Duty; only your commander has that authority.

The reasoning; if you are injured while working at that job you ARE covered by the military and would be authorized service connection because you are still on Active Duty.

You are greying the lines by returning to full time employment while still on active duty. The USERA does NOT apply here because reemployment while still on active duty is not authorized by USERA and diesn't fall under it's jurisdiction.

If you decide to return to employment while on Active Duty WITHOUT authorization from your commander one of two things could happen.

You work while on Terminal Leave and have no workplace injuries and noone is the wiser and the world continues to turn.

You work while on TERMINAL Leave and have a workplace injury. Worker's Compensation will NOT cover you because you are in receipt of active duty pay AND the military will find it was NOT IN THE LINE OF DUTY because you did not have authorization from your commander to have full time employment.

So it's your decision and I just want to make sure you know the consequences if something happens.

Also USERA doesn't apply to them paying you the difference, because USERA doesn't apply while you are still on Active Duty.
 
Though you may be able to "negotiate" a good outcome from this situation directly, I think that you need to seek legal help for legal issues (not to criticize the thoughts offered here, but many of the posts raised so many issues, some of them in the wrong direction, that I think it is important that I point this out).

Much of the final resolution will turn on your actual duty status, and the authorization you have to work. I know of cases where civilian work is authorized (think of second jobs while in a military status), and when I was a commander of a mobilized unit, during De-mob, I had an occasion to authorize early return to work of some of my unit's members. The answer really lies in the authority for your work (from the military side). But, the work issues most likely resolve under Federal and State law.

I don't think it is necessarily right that USERRA does not apply to you. See, below.


Title 38, United States Code
U.S. Department of Labor
.
********

(2) The term "benefit", "benefit of employment", or "rights and benefits" means any advantage, profit, privilege, gain, status, account, or interest (including wages or salary for work performed) that accrues by reason of an employment contract or agreement or an employer policy, plan, or practice and includes rights and benefits under a pension plan, a health plan, an employee stock ownership plan, insurance coverage and awards, bonuses, severance pay, supplemental unemployment benefits, vacations, and the
(3) The term 'employee' means any person employed by an employer. Such term includes any person who is a citizen, national, or permanent resident alien of the United States employed in a workplace in a foreign country by an employer that is an entity incorporated or otherwise organized in the United States or that is controlled by an entity organized in the United States,


§ 4304. Character of service
A person's entitlement to the benefits of this chapter by reason of the service of such person in one of the uniformed services terminates upon the occurrence of any of the following events:
(1) A separation of such person from such uniformed service with a dishonorable or bad conduct discharge.
(2) A separation of such person from such uniformed service under other than honorable conditions, as characterized pursuant to regulations prescribed by the Secretary concerned.
(3) A dismissal of such person permitted under section 1161(a) of title 10.
(4) A dropping of such person from the rolls pursuant to section 1161(b) of title 10.

SUBCHAPTER II--EMPLOYMENT AND REEMPLOYMENT RIGHTS AND LIMITATIONS; PROHIBITIONS
§ 4311. Discrimination against persons who serve in the uniformed services and acts of reprisal prohibited
(a) A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation
 
You must log in or register to reply here.
Top