jethikoki

Q: The personnel director insists that the XYZ employee manual clearly states that an employee must be present for work on the last business day of the year to receive a performance evaluation and to qualify for an annual bonus. She said that the company has never made an exception to this rule and will not make an exception now. What do you think about that?

A: In its first case construing the reemployment statute, the Supreme Court stated, “No practice of employers or agreements between employers and unions can cut down the service adjustment benefits that Congress has secured the veteran under the act.” Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 285 (1946). Section 4302(b) of USERRA [38 U.S.C. 4302(b)] provides that USERRA overrides any agreement or employer policy that purports to limit USERRA rights.

Q: Where do I go from here?

A: I suggest that you contact the National Committee for Employer Support of the Guard and Reserve (ESGR), at 1-800-336-4590. ESGR is a Department of Defense organization, founded in 1972. Its mission is to gain the support of civilian employers for the men and women of the National Guard and Reserve. If ESGR is unable to persuade XYZ to come into compliance, your next step is to make a formal complaint to the U.S. Department of Labor’s Veterans’ Employment and Training Service, or to retain a private counsel and sue XYZ in the U.S. District Court for any district where the company maintains a place of business. But please give ESGR a chance to try to work this out informally and amicably, before you “make a federal case out of it.”

Q: What about bonuses? If the fire department meets its goals for the year, each employee who worked during the year is entitled to a bonus. If I miss the whole year because of military service, am I entitled to the bonus?

A: Probably not. The bonus is a form of short-term compensation, not a perquisite of seniority. If you were not there, you did not earn the bonus. Of course, the city can give you the bonus if it wants to-the employer can always do more than the law requires. And if you were there for some significant part of the year, you should receive at least a pro rata share of the bonus.

Moreover, you may be entitled to the whole bonus if you can show that other employees who are away from the job for a substantial part of the year for non-military leaves of absence (jury duty, educational leave, maternity leave, etc.) receive the whole bonus. This is based on USERRA's “furlough or leave of absence” clause, 38 U.S.C. 4316(b). [See also Law Reviews 41 and 58.]

Q: The bonus is awarded on the first business day of the new calendar year, like Monday, January 3, 2005. I know a firefighter who is a member of the Army Reserve. She was called to active duty at the very end of 2004, after having worked for essentially the entire year. She was denied the bonus because she was on active duty and not present for work January 3. Is this lawful?

A: No. Because she worked the whole year 2004, she earned the bonus. Depriving her of the bonus because she is not present on the “magic date” when the bonus is awarded is a violation of USERRA