Q & A USERRA Protects Employee Position


Question Corner

USERRA Protects Employee Position

By Jason R. Mau

Q: One of our employees is serving a nine-month probationary period and has been called to active duty for two years. Are we required to make her a permanent employee? Or should we extend the probationary period and require her to complete it upon her return?

A: Under the Uniformed Services Employment and Reemployment Rights Act (USERRA), as long as it does not impose an undue hardship on your business, once she submits an application for reemployment, she will be entitled to the position she would have attained had she been continuously employed.  Thus, you will not be allowed to extend the probationary period. 

Q: Our company has an intranet site. Is it enough to put PDFs of the labor law posters on the intranet site, or do we have to post physical posters as well?

A: While each of the notice/posting laws are a little different, most require the notices be displayed in a conspicuous place where every employee can see the poster.  Further, many also require that applicants are able to see the notices.  For that purpose alone, and the fact that it may be hard to show that an intranet site is a conspicuous place, it is recommended that you post physical posters.     

Q: One of our employees has said he is dealing with a family member with mental health issues. He leaves for a few hours at a time and just says he’ll be “offline.” My boss says he has to tell me exactly what’s going on. Is that legal?

A: The employee may be eligible for intermittent leave under the Family and Medical Leave Act (FMLA) to care for a spouse, parent, son, or daughter with a serious health condition that can best be accommodated through an intermittent schedule, but only if the employee has made a reasonable effort to schedule the leave so as not to unduly disrupt the employer’s operations.  Thus, he may not need to tell you exactly what is going on, but is obligated under the FMLA to provide enough information to show that he eligible for FMLA leave and to make a reasonable effort to reduce disruptions to the work schedule.  If needed, under the FMLA, you are allowed to require the employee to provide medical certification of a serious health condition, which should address the medical necessity of intermittent leave and help relieve any doubts regarding this employee’s requested leave. 

Q: Our VP wants to require salaried, exempt employees to work 45 or more hours each week. Is there a maximum amount of hours exempt employees may work?

A: The Fair Labors Standards Act (FLSA) does not limit the number of hours an employee may be required to work, as long as the salary meets the exemption guidelines.

Jason R. Mau is an attorney with Greener Burke Shoemaker Oberrecht, P.A.  He can be reached at 208-319-2600 or jmau@greenerlaw.com.