By: Jay Mittelman
Q. Can I have an agreement with an employee not to join the National Guard or Reserves?
Note: When you discipline any employee — not just members of the Guard or Reserves — and you are sued, a judge will view your case more favorably if you use progressive disciplinary measures and document your case.
Progressive disciplinary measures include an oral warning, a written warning, a suspension-without-pay and finally, termination. Documentation is best when you make written notes of these steps and include them in an employee’s personnel file.
Like most employers you probably find burdensome the unlimited time and duration of military leaves.
Example: Greg, one of your salespeople, joins the Air Force Reserves. Because he’s never before been in the military, he needs to go through basic training. This initial training period lasts anywhere from several weeks to several months.
After basic training Greg will acquire a special skill, such as the ability to repair airplanes. Training for this skill may run back-to-back with basic training. It may follow shortly thereafter. Again, this training may last from several weeks to several weeks to several months.
After completion of basic training, Greg has 31 days to report back to work.
At this point, Greg’s drill schedule may be like those of most members of the Guard or Reserves. Military leave may amount to only two weeks a year and/or one weekend a month.
But Americans are increasingly concerned with national defense. The Pentagon is placing increased demands on the Guard and Reserves. In turn, employers must increasingly bow to additional requests for military leaves.
Example: The Air Guard unit in which Greg is assigned must replace transport planes with fighter planes. New planes necessitate new training. Greg may be gone anywhere from a few days to a few months.
Let’s imagine that Greg advances in rank.
Example: Greg earns a commission as sergeant or as a lieutenant. The increased responsibilities associated with these ranks necessitates an increased time commitment. This shows in the form of more training and technical conferences.
It would be the unusual example, though not unheard of, for Greg to spend a period of several years on military leave. When Greg comes back from this leave, you are required to return him to the same or similar position and salary as he held prior to the leave.
Again, the only exceptions to this rule are when Greg can no longer perform the job, or when it is impossible or unreasonable to rehire him.
Example: Few courts would interfere with your right to discharge an employee after he provoked a fist fight with his supervisor.