As 200 Kauaians affiliated with the Hawaii Army National Guard ready themselves for deployment to Iraq soon, there’s a dual sense among Kaua‘i businesses that the deployment — while a difficult personal situation for the soldiers — could take an
As 200 Kauaians affiliated with the Hawaii Army National Guard ready themselves for deployment to Iraq soon, there’s a dual sense among Kaua‘i businesses that the deployment — while a difficult personal situation for the soldiers — could take an economic toll here at home.
Many of these soldiers are highly trained professionals, and often play key roles in their respective businesses. Their absence will be sorely missed, say local business leaders.
“No question that 200 Kaua‘ians taken out of our workforce would have an adverse impact on businesses, especially with our economy on such a steady upswing and consumer confidence at an all time high,” said Mamo Cummings, president of the Kaua‘i Chamber of Commerce.
Many businesses — especially larger ones — have already felt the effects of military service, and have implemented rules for leave of absence.
For example, the Sheraton Kaua‘i offers all their employees generous long-term leaves of absence for emergencies, particularly where national security is concerned.
“Of the three to five of our people affected by the call up, most are seasoned senior employees,” said Darlene Yamase, Sheraton Kauai’s director of human resources. “While this may not seem like a lot, their absence will be felt.”
Most Kaua‘i businesses, especially hotels, are hesitant to comment about the effect their deploying employees will have on business, mostly because they don’t want to appear callous. Discussion about deployment to war-torn Iraq is a very somber and serious one.
While each company has its own policy, and the federal government has yet to dictate how small businesses handle long-term leave for military personnel called up, there are federal guidelines protecting a departing and returning soldier’s rights.
The federal government, along with the state, is urging Hawaii business large and small to honor these rights.
The state Legislature recently passed Resolution 23. While not law of the land, it urges businesses to support their fellow citizens who serve as volunteers in the National Guard and military reserve, by “returning deposits for goods or services and otherwise financially accommodate their needs to the extent practicable.”
In other words, the state is asking that moneys for rents paid in advance, deposits on pending purchases, even future billings for basic utility services, be returned or, at least, put on hold.
Meanwhile, soldiers facing deployment wonder if their jobs will be there when the return Again, there are rules in place protecting their rights. It’s important for businesses to know that they can replace employees that have deployed, but equally important to understand a returning soldier’s rights.
Here’s a brief look at them, according to the Office of the Assistant Secretary for Veterans’ Employment and Training (OASVET):
The Uniformed Services Employment and re-employment Rights Act (USERRA 38 U.S.C. 4301-4333) — passed soon after 9/11 — clarifies and strengthens the Veterans’ re-employment Rights (VRR) Statute by protecting civilian job rights and benefits for veterans and members of Reserve components.
- USERRA expands the cumulative length of time that an individual may be absent from work for military duty and retain re-employment rights for five years (the previous law provided four years of active duty, plus an additional year if it was for the convenience of the government). There are important exceptions to the five-year limit, including initial enlistments lasting more than five years, periodic training duty, and involuntary active duty extensions and recalls, especially during a time of national emergency. USERRA clearly establishes that re-employment protection does not depend on the timing, frequency, duration, or nature of an individual’s service.
- USERRA provides enhanced protection for disabled veterans, requiring employers to make reasonable efforts to accommodate the disability. Service members convalescing from injuries received during service or training may have up to two years to return to their jobs (as opposed to the one year provided by the old law).
- As under the previous law, USERRA provides that returning service-members are reemployed in the job that they would have attained had they not been absent for military service (the long-standing “escalator” principle), with the same seniority, status and pay, as well as other rights and benefits determined by seniority. However, USERRA also requires that reasonable efforts (such as training or retraining) be made to enable returning service members to refresh or upgrade their skills to help them qualify for re-employment.
The law clearly provides for alternative re-employment positions if the service member cannot qualify for the “escalator” position. USERRA also reaffirms and clarifies that while an individual is performing military service, he or she is deemed to be on a furlough or leave of absence, and is entitled to the non-seniority rights accorded other individuals on non-military leaves of absence
- A soldier performing military duty of more than 30 days may elect to continue employer sponsored health care for up to 18 months; however, they may be required to pay up to 102 percent of the full premium. For military service of less than 31 days, health care coverage is provided as if the service member had remained employed. USERRA clarifies pension plan coverage by making explicit that all pension plans are protected
The time an individual has to make application for re-employment or report back to work after military service is now based on time spent on military duty. For service of less than 31 days, the service member must return at the beginning of the next regularly scheduled work period on the first full day after release from service, taking into account safe travel home plus an eight-hour rest period.
For service of more than 30 days but less than 181 days, the service member must submit an application for re-employment within 14 days of release from service. For service of more than 180 days, an application for re-employment must be submitted within 90 days of release from service.
- USERRA also requires that service members provide advance written or verbal notice to their employers for all military duty unless giving notice is impossible, unreasonable, or precluded by military necessity. Additionally, service members are able (but are not required) to use accrued vacation or annual leave while performing military duty
- The Department of Labor, through the Veterans’ Employment and Training Service (VETS) provides assistance to all persons having claims under USERRA, including federal and Postal Service employees. If resolution is unsuccessful following an investigation, the service member may have his or her claim referred to the Department of Justice for consideration of representation in the appropriate District Court, at no cost to the claimant. For the first time, if violations under USERRA are shown to be willful, the court may award liquidated damages. Federal and Postal Service employees may have their claims referred to the Office of Special Counsel for consideration of representation before the Merit Systems Protection Board (MSPB).
Individuals who pursue their own claims in court or before the MSPB may be awarded reasonable attorney and expert witness fees if they prevail.
- Service member employees of intelligence agencies are provided similar assistance through the agency’s Inspector General.
For compete information on USERRA visit: https://www.dol.gov/agencies/vets/programs/userra/USERRA-Pocket-Guide
For more information on the GI Bill visit: https://www.chamberofcommerce.org/what-is-the-gi-bill
