September 2004

Good morning!

Well, summer is barely visible in our rear view mirrors and we're already flying through September. The pace of business has increased and my small business clients continue to be challenged daily with the minutiae of running a company.

On March 19, 2003 America went to war with Iraq. Much as we all hoped that it would soon be over, most of us knew it would not and began to plan accordingly. It affected so many of our businesses, as men and women began to leave their jobs to serve their country. Eighteen months and many questions from clients later, it seemed an opportune time to review the requirements when your employees take "military leave."

And don't forget to do something for yourself this month. SBANE's Dialog (see below) is a gift to yourself that keeps on giving every month for a year. For the savvy, sophisticated CEO, Dialog is a "must have" on the priority checklist.


Marijo McCarthy, Esq.
President, Widett and McCarthy, P.C.

What To Do When Our Employees Go To War

When our employees began to serve our country by active duty in Iraq 18 months ago, many of my clients experienced a new challenge — the loss of a man or women from their small businesses to extended military service. Naturally, for a small company, the loss of one employee can make a significant difference.

Many of you of course had questions that needed answers back then. As we sit here months later however, with many employees still overseas, I continue to receive questions and "what ifs" on a regular basis. With that in mind, I thought we might all benefit from a refresher course on the "do-s and don't-s" of having your employees answer to a "higher authority."

State law in the Commonwealth of Massachusetts allows any employee who is a member of a military reserve unit to request leave to fulfill military training that does not exceed 17 days in any one calendar year. That employee is entitled to unpaid leave that cannot affect his or her employment status, seniority, pay, bonuses, vacation and sick leave, entitlements, or other conditions of employment.

Federal law requires all employers — regardless of size — to allow a leave of absence to any employee who performs a military service obligation in the uniformed armed services and to reemploy that employee upon completion of his or her service. Under Federal law, the extent of the employer's obligation and the benefits to the employee differ depending upon the length of the employee's service.

In general however, the following will apply:

  • An employee may elect to use any accrued paid vacation while on leave but cannot be required to do so.
  • An employee on military leave is entitled to receive, and is obligated to pay for, any rights or benefits that an employer provides to employees on leaves of absence or furlough.
  • An employee is entitled to reemployment at the conclusion of the leave if the employee gives advance notice of the need for the leave to the employer and if the employee follows the reemployment application procedures, which differ depending upon the length of the leave.
  • An employee is not entitled to reemployment if the absence from work because of military service, combined with absences due to any other periods of military service, cumulatively exceed 5 years.

OK, those are the rules, but what does it mean for the time-constrained small business employer? Here are my thoughts and recommendations:

  1. Review and understand the law and create a written policy in your company for all employee leaves which are regulated by law.

  2. Don't try to re-invent the wheel. There are "sample" leave policies for almost every kind of employee leave. Contact your advisors and work with them!
  3. Be consistent. Apply your employee policies consistently and fairly. It's hard to get in trouble when you follow the rules and treat all employees equitably.

  4. Close the pay gap if you can. Although military leaves may be "paid" by your employee's new temporary boss, the U.S. military, the pay is rarely equivalent to what that employee has been paid in the private sector. And since unlike many other leaves (maternity for example), military leave is not the employee's choice, he or she may be leaving behind a spouse and family who are particularly vulnerable to less pay and the loss of their family member.

    In the long run, you'll be doing your business (and country) a service by closing the pay gap to whatever extent you are financially able (it probably can't go on indefinitely, and you should consider that when you adopt your policy).
  5. Remember those who stay behind. The loss of an employee to military leave (again, unlike to maternity leave which is joyful and celebratory) leaves the remaining employees concerned and morale can plummet quickly.

    Talk to the remaining employees about covering that employee's duties temporarily and reward them in some small way for doing their bit. One of my clients in this situation gave his employees a "Brigham's sundae party" once a month and invited the employee's family to join them, just to keep everyone in touch.

Military leave is a challenging time for all concerned. With proper planning and careful execution however, you have the opportunity to make the best of a difficult situation.

Things We Like. . .

For more than 30 years, the Smaller Business Association of New England (SBANE) has offered member-CEOs a confidential, peer-to-peer, facilitated forum to meet and exchange views with other business owners.

It's called the SBANE Dialog Program and is based upon the premise that, "it's lonely at the top." No one understands the challenges facing small business CEOs better than other small business CEOs.

SBANE's Dialog will enhance your company's profitability by:

  • Testing new business ideas and concepts without risk
  • Exploring how your marketing plan could be more effective
  • Developing new ways to manage key personnel issues
  • Maximizing business opportunities by hearing other ideas and perspectives
  • Gaining an impartial and objective sounding board
  • Giving you access to the expertise of others with different skills and experiences

Visit (Upcoming Events) or e-mail and sign up today! But act now — registration ends September 20!

About Us

Widett and McCarthy helps small business owners start, grow, acquire and sell their businesses.

We serve as "in-house counsel" . . . on-call when needed, but not part of the company overhead. Our best clients understand that the relationship between lawyer and client is a two-way street, built on information sharing and problem solving.

For more information regarding
how we can help you, click here.

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Legal Tidbits

One of my more activist small business clients tipped me off to a web site which not only provides a terrific FAQ (in easy-to-read language, no less!) dedicated to employers of men and women who perform military service, but actually highlights employers who go above and beyond the legal requirements of Federal law to support their employees on military leaves.

If you have a particular interest in learning more, visit

Widett and McCarthy, P.C.
1075 Washington Street
West Newton, MA 02465

Telephone: 617.964.5559
Facsimile: 617.964.5529

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Useful Links. . .
The information you obtain at this site is not, nor is it intended to be, legal advice.
You should consult an attorney for individual advice regarding your own situation.

Widett and McCarthy · 1075 Washington Street · West Newton · MA · 02465

Copyright � 2004 Widett & McCarthy.