Military Leave And Its Impact On Employers
When an employee is called to military service, what are his rights and
what are the employer's obligations?
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Morbey |
By Alison J. Morbey
The federal Uniformed Services Employment and Re-employment Rights Act (USERRA
or Act), 38 U.S.C. §4301, et seq., generally requires all public and private
employers to provide leaves of absence for military service for up to five years;
to reinstate employees into the positions they would have held had they not
been on military leave; to continue certain benefits during periods of leave;
and to refrain from discharging without cause an employee who is reinstated
after military leave for a period of up to one year after re-employment. In
addition, USERRA prohibits employment discrimination based on past, present
or future military obligations.
Eligible employees
Employees who are voluntarily or involuntarily called into service by any of
the following "uniformed services" or the corresponding Reserve units, are entitled
to re-employment rights and benefits under USERRA: the Army, Navy, Air Force,
Marine Corps or Coast Guard; the Army National Guard and Air National Guard;
the Commissioned Corps of the Public Health Service; and any other categories
designated by the president in time of war or emergency.
"Service" includes active duty, various types of training duty, full-time National
Guard duty, examinations to determine fitness for military duty and funeral
honors duty performed by National Guard or Reserve members.
Notice requirements
An employee must provide his or her employer advance notice of military service
obligations. Notice is usually provided in the form of military orders, training
notices or induction papers. However, the Act permits oral notice from the employee
or a military officer.
The obligation to provide advance notice is waived if military necessity precludes
giving notice or if, under the circumstances, providing notice is otherwise
impossible or unreasonable.
Duration and timing of leaves
Under USERRA, an employer must provide a leave of absence for up to five years.
This time period is extended in certain situations, including orders to or retention
on active duty during a war or national emergency. In addition, the annual training
sessions and monthly weekend drills for Reservists and National Guard members
do not count toward the five years of leave.
An employer cannot refuse to grant an employee a leave of absence because the
employer finds the duration, time or frequency of an employee's military obligations
to be unreasonable.
Compensation during leave
Employers are not required to compensate non-exempt employees for absences
due to military service.
However, under the federal Fair Labor Standards Act (FLSA), an employer may
not make deductions from an exempt employee's salary due to "temporary military
leave." Although this term is not defined under the FLSA, courts have concluded
that temporary military leave is leave that ranges from 15 to 30 days.
In addition, employers cannot dock an exempt employee's salary for partial
week absences due to temporary military duty without risk to the exemption.
Both exempt and non-exempt employees may elect to use any accrued vacation leave
in lieu of unpaid military leave. However, an employer cannot require an employee
to use vacation time for military leave purposes.
Benefits during military leave
USERRA provides expansive protection of an employee's benefits during periods
of military leave. In general, employees on military leave must receive comparable
rights and benefits to those they would receive under the employer's policies
for other types of leave.
1. HEALTH INSURANCE
USERRA requires an employer to offer continuous health insurance coverage to
individuals on military leave for a period of up to 18 months, even if the employer
is not covered by the federal COBRA law. If an employee's military leave is
30 days or less, the employee may not be required to contribute more than his
or her normal share of any premium. If military service exceeds 30 days, the
employee may be required to contribute up to 102 percent of the full premium
under the health plan. No waiting period or exclusion period can be imposed
upon reinstatement, unless either would have been imposed regardless of the
leave. However, service-connected disabilities are not subject to exclusion
or waiting periods.
2. VACATION AND SICK TIME ACCRUAL
An employer can suspend the accrual of vacation and sick time during unpaid
periods of an employee's military leave if the same practice applies to employees
on leave for other reasons. Upon re-employment following a military leave, an
employee must accrue vacation and sick time at the accrual rate he or she would
have attained had the employee not taken a military leave.
3. PENSION BENEFITS
Periods of military leave may not be considered a break in service for vesting
and pension benefit accrual purposes. When an employee returns from military
leave, an employer must make any pension contributions that it would have made
if the employee had not taken a military leave.
For contributory plans that offer benefits only when the employees make contributions,
an employee returning from military leave will have three times the period of
his or her absence to make up missed contributions (not to exceed five years).
Under contributory plans, an employer must make matching contributions only
to the extent that a returning employee makes up the missed contributions to
the plan.
Reinstatement obligations
In general, if an employee has met the requirements for reinstatement following
a military leave, an employer (or that employer's successor in interest) has
an affirmative obligation to re-employ the employee subject only to very limited
exceptions. The reinstatement obligations for both employees and employers are
discussed below.
1. EMPLOYEES' REINSTATEMENT OBLIGATIONS
Under USERRA, employees returning from military service have between two days
(plus travel time) and 90 days to report to work, or apply for reinstatement,
depending upon the length of their military service. The Act allows for an extension
of these time limits if an employee, through no fault of his or her own, is
unable to meet these deadlines.
In addition, the time limits may be extended for up to two years if the employee
is hospitalized or convalescing from a service-related illness or injury.
If an employee's period of military service exceeds 30 days, an employer may
request documentation establishing the timeliness of the employee's application
for re-employment and the length and character of the employee's military service.
2. EMPLOYERS' REINSTATEMENT OBLIGATIONS
Depending upon the length of military leave, USERRA requires that an employer
reinstate an employee to the position he or she would have attained absent military
leave not simply the job held by the employee at the time the leave started
or a comparable position, so long as the employee is qualified (or can become
qualified) for the position.
Under USERRA, an employer must make reasonable accommodations for employees
with service-related disabilities. If, despite reasonable accommodation, an
employee is not qualified for the position he or she would have held but for
military service, the employee must be re-employed in a position of equivalent
seniority, status and pay for which he or she is qualified or could become qualified
to perform.
Failing this, the employee must be re-employed in a position that is the "nearest
approximation" in terms of seniority, status and pay, consistent with the individual's
medical restrictions.
In addition, USERRA requires employers to make reasonable efforts to provide
refresher training and any other training necessary to update a returning employee's
skills in circumstances where the employee is no longer qualified for a position.
Employers are excused from providing training only if the required training
would be of such difficulty or expense as to cause undue hardship for the employer.
Under USERRA, undue hardship has essentially the same meaning as it does under
the Americans with Disabilities Act.
3. LIMITED EXCEPTIONS TO REINSTATEMENT OBLIGATIONS
USERRA provides a few limited exceptions to an employer's obligation to reinstate
an employee returning from military duty. An employer is excused from its re-employment
obligations if the employer's circumstances have changed so much that re-employment
would be "impossible or unreasonable."
For example, if an employee's position is eliminated due to a reduction in
force during his or her military leave and the employee would have been terminated
had he or she been actively employed, an employer will have no obligation to
reinstate the employee.
Additionally, an employer is not obligated to reinstate employees hired on
a temporary or seasonal basis prior to military leave where there was no reasonable
expectation that employment would continue indefinitely or for a significant
period. Thus, in most circumstances an employer has no obligation to reinstate
temporary or seasonal workers or interns following periods of military leave.
Finally, an employer need not reinstate an employee who fails to complete military
service under honorable conditions.
USERRA lists four circumstances under which an employee's re-employment rights
would be terminated due to misconduct: separation from service with a dishonorable
or bad conduct discharge; dismissal of a commissioned officer in certain situations
involving a court martial or by order of the president in time of war; dropping
of a commissioned officer from the rolls when the officer has been absent without
authority for more than three months or when the officer is imprisoned by a
civilian court; and separation from the service under other than honorable conditions.
Protection of Employees Against Discharge or Discrimination
An employee who is re-employed after a military leave of 181 days or more may
not be discharged without cause for one year after the date of re-employment.
Likewise, an employee re-employed after a military leave of 30 days, but less
than 180 days, may not be discharged without cause for 180 days after the date
of re-employment.
Employees who are re-employed after military leaves of less than 30 days are
not protected from discharge without cause. However, an employer may not discriminate
against any employee because of his or her military service or obligations.
USERRA provides protection from discrimination and retaliation because of past,
current, or future military obligations. This prohibition on discrimination
includes discrimination in hiring, promotion, re-employment, termination, compensation
and benefits.
Employers also are prohibited from retaliating against individuals who file
complaints under USERRA, who testify, assist or otherwise participate in investigations
or proceedings under the Act, or who exercise any right provided under the Act,
regardless of whether the individual has served in the military.
If an employee's past, present or future military obligations are a motivating
factor in an employer's adverse employment action against an individual, the
employer has violated the Act unless it can prove that it would have taken the
same action regardless of the individual's military obligations.
USERRA clarifies that an employer may be liable if an employee's military service
is just one of the reasons for an employer's adverse employment action. To avoid
liability, an employer must prove that a reason other than military service
would have been sufficient to justify its adverse employment action.
Enforcement
Actions for violations of USERRA may be brought by the attorney general or
by individuals. Remedies include equitable remedies, lost wages or benefits.
If a court determines that an employer's failure to comply with the Act is willful,
the court may award an additional amount equal to the compensation owed to the
employee as liquidated damages.
A court may award attorneys' fees, expert witness fees and litigation expenses
to successful plaintiffs who retain private counsel.
Alison J. Morbey has more than 14 years' experience in employment
law and human resources management. She is currently Employment Counsel for
Yahoo! Inc.
Certification
- This self-study activity has been approved for Minimum Continuing Legal Education
credit by the State Bar of California in the amount of one hour.
- The State Bar of California certifies that this activity conforms to the
standards for approved education activities prescribed by the rules and regulations
of the State Bar of California governing minimum continuing legal education.
Self-assessment test
Answer the following questions after reading the MCLE article on commercial
letters of credit. Use the
answer form provided to send the test, along with a $20 processing fee,
to the State Bar. If you do not receive your certificate within four weeks,
call 415-538-2504.
- USERRA covers public and private employers.
- Small employers are not subject to USERRA's requirements.
- Employers are not obligated to reinstate employees who voluntarily enlist
for military service.
- Employees serving full-time in the National Guard are not covered by USERRA.
- Employers must provide leaves of absence for Reservists who serve as an
honor guard in military funerals.
- The period of protected military leave can extend beyond five years in times
of war.
- Annual training for Reservists counts toward a five-year military leave.
- An employee must provide written notice of his or her military service obligations.
- An employer can require an employee to postpone military obligations based
on business necessity.
- Employers can require employees to use accrued vacation during military
leave.
- Employers must pay exempt employees for periods of temporary military service.
- An employer must continue an employee's group health coverage for up to
18 months during a military leave.
- After 30 days of military leave, an employer may require the employee to
pay 102 percent of the group health premium.
- Military leave is considered a break in service for pension plan vesting.
- Upon returning from leave, an employee can make up missed contributions
to a contributory pension plan.
- An employer must reinstate a temporary employee.
- An employer can refuse to reinstate an employee who was dishonorably discharged
from military service.
- An employer may have to provide training for employees returning from military
leave.
- Employees are protected from retaliation under USERRA only if they served
in the military.
- USERRA suspends at-will employment for up to one year for employees returning
from military leaves of 30 days or more.
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