01
Jan
2003

Obligations to Employees Called to Military Service

Employment Law Insider & Alert

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PUBLISHED ON: January 1, 2003

Against the backdrop of escalating hostilities in the Middle East and reports of President Bush calling-up 100,000 military reservists to active duty, employers should be increasingly concerned with their military leave obligations under the Federal Uniform Services Employment and Reemployment Rights Act (“USERRA”). The 1994 law prohibits discrimination toward returning service members, reservists and National Guard members based on their active military duty or training obligations. This prohibition covers past, present and future military service and extends to most areas of employment, including hiring, promotion, re-employment and employee benefits.

Coverage/Eligibility

USERRA covers all employers regardless of size, and applies to all veterans who perform voluntary or involuntary service in the uniformed services, including active duty, active duty for training, inactive duty, inactive duty for training, and full-time National Guard duty.

Five Year Service Protection

USERRA entitles veterans to serve a total of five years on active military duty without forfeiting their rights to return to their civilian jobs with full seniority, and attendant benefits. There are a number of conditions under which the 5 year period may be extended.

Applying for Reinstatement

Length of military service determines when a veteran must report back to work or apply for re-employment. If length of service is 30 days or less, a veteran must return to work by the next regularly scheduled working day. If length of service is between 31 days and 180 days, a veteran must apply for reemployment within 14 days of completing military service. If length of service is 181 days or more, a veteran must reapply for employment within 90 days of completing military service. Veterans hospitalized for an injury incurred or aggravated during military service have up to two years to seek re-employment.

Re-employment Position

While the position to which a returning veteran must be reinstated depends upon the duration of the military service, generally speaking a returning veteran must be reemployed in their prior position or the position he or she would have attained, but for the military service.

Returning Status: The “Escalator”

USERRA incorporates the “escalator” principle which requires that qualified veterans returning to work be, with some exceptions, re-employed at the “precise point” they would have attained had their employment not been interrupted by military service. This escalator principle seeks to ensure that veterans receive the “perquisites of seniority” —changes and advancements in job status that necessarily occur “simply by virtue of continued employment.” Such perquisites of seniority typically include pensions, severance pay, health benefits, employee stock option plans, and bonuses.

Restrictions on Termination Following Reinstatement

Regardless of an employer’s at-will policy, an employee who has been re-employed after service lasting between 30 and 180 days is entitled to at least six months of employment protection under USERRA’s statutory “cause” scheme. If an employee's service exceeded 180 days, he is entitled to at least a year of such protected employment.While the Act is silent on what standard of “cause”is to be applied, the traditional definition of “just cause” employed by labor arbitrators would generally apply.

Waiver of Re-Employment Rights

Veterans who fail to report or apply for re-employment within the prescribed period do not automatically waive reemployment rights, but are subject to employers’ policies concerning absence from work.Veterans can waive protections under USERRA. The waiver, however, must be “clear and unequivocal.” Veterans waive their re-employment rights when, prior to leaving for military service, they knowingly provide clear, written notice of their intent not to return to work. USERRA protections end if a veteran separates from military service with a dishonorable or bad-conduct discharge, under other than honorable conditions, or by sentence of a general court-martial.

Enforcement and Remedies

Relief that can be sought and granted under the act include compliance, damages in the amount of pay or benefits wrongfully denied; and liquidated damages, when the violation of USERRA is willful.

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Given the large number of reservists who have been, or will be, called to active service in the current climate, it is essential that all employers understand their legal obligations to their employees in military service.