Policies Guide Employers, Reservists

Employer Obligations Toward Military Reservists

By: Harvey Sanders and Jeri Hagen

Since the September 11 terrorist attacks, more and more reservists from Western New York and around the country have been called for active duty, including National Guardsmen from the local 107th Air Refueling Wing and the local 914th Airlift Wing’s security squadron.  Western New York alone has approximately 2,000 members in the reserve units.
As our country struggles to pull together and move forward with the war on terrorism, many employers find themselves in unfamiliar territory, with one less secretary, attorney, mechanic, or teacher.  Human Resource professionals are scrambling to review federal obligations as well as their own policies toward employees called to active duty.
USERRA
In response to the Persian Gulf War, a federal law, the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), was enacted to provide employees called to active duty with certain rights regarding employment, reemployment, health plan coverage and tax-qualified retirement plan coverage.  (The law also covers other types of uniformed services, besides active duty, such as duty for training, fitness-for-service  examinations, funeral duty, and National Guard duty.)  It strengthens and clarifies the Veterans’ Reemployment Rights Statute.  
Eligible Employees
Under the law, all eligible employees are protected as to reemployment, whether full or part-time (temporary employees are excluded) and regardless of the branch of the armed services served.  To be eligible, the employee must have:
 
• held a civilian job;
• provided their civilian employer with advance oral or written notice of military service, unless notice is impossible or unreasonable;
• not exceeded a five-year duration of military service (such duration is cumulative and may be taken intermittently) with some categories of service exempt;
• been honorably discharged from service;
• reported back to work in a timely manner or have submitted a timely application for reemployment.  The time limits for returning to work or submitting an application for reemployment range from as little as 8 hours to us much as 90 days after completion of the period of service, and depend on the duration of an employee’s military service (although the reporting deadlines are extended for employees who become disabled during their military service).  If an employee fails to report back to work or apply for reemployment within the proscribed time frame, the employee does not forfeit his/her rights under USERRA, but s/he is subject to the employer’s general practices with respect to discipline for absence from scheduled work;
• provided relevant documentation, upon request.
Moreover, all public and private employers, organizations, etc., that pay wages or salaries are subject to the provisions of the Act, including Federal and State governments.
Federal Protections 
 
  Under the provisions of the Act, eligible employees who are called to active duty have the right to promptly return to work for the employer unless such reemployment is unreasonable or impossible.  Under the “escalator” principle, the employee is generally put in the position s/he would have attained if s/he had not left for military service.  If the employee is not qualified to perform those duties, USERRA requires that employers make reasonable efforts to qualify returning service members unless such efforts cause the employer an undue hardship.  If a returning employee is unable to perform the duties of such position due to a disability incurred or aggravated during their military service, USERRA requires employers to make reasonable accommodation.  Indeed, if the employee cannot become qualified for such a position, despite training and/or reasonable accommodation, the employee should be reemployed in a position that is the nearest approximation to a position of like seniority, status and pay. 
       Moreover, eligible employees:
• may continue health care coverage for the employee and dependants during uniformed service for up to 18 months or for the period of service, whichever is shorter.
• are guaranteed reinstatement into the employer’s health plan when the employee returns, without meeting eligibility or coverage requirements.
• are entitled to the seniority and all the rights and benefits based on seniority that they would have attained with reasonable certainty had they remained continuously employed.
• are entitled to their pension plan benefits that accrued during military service when they return to work.  An employer generally must credit all years of service while the employee is on leave for uniformed service and must make employer contributions in the same manner as for other employees.  Employees are given a catch-up period after reemployment to make-up their applicable contributions.
• shall be treated as not having incurred any plan “break-in-service” by reason of uniformed service for purposes of vesting when they return to work.
• are entitled to be treated as being on a leave of absence for rights not based on seniority.
 
• are permitted to use any vacation time they are entitled to instead of unpaid leave, but cannot be forced to use vacation time for military service.
• may not be discharged without cause up to a year after the date of reemployment, depending on the length of uniformed service (the individual’s uniformed service must have been more than 31 days).
• are protected against employment discrimination on the basis of past military service, current military service or an intent to serve, regardless of the amount of time served. 
Of course, employers may exceed the requisites of USERRA, as numerous local and national employers have announced and others are considering.  For example, although USERRA requires that employees be treated as if they are on a leave of absence, it is becoming more common for employers to offer at least some paid leave to eligible employees.
Remedies
USERRA is enforced by the federal Department of Labor’s Veterans’ Employment and Training Service (“VETS”).   USERRA also provides for a private right of action without filing an administrative complaint with VETS.  The administrative route and the litigation route may include the following remedies: return to a job, back pay, lost benefits, corrected personnel files, lost promotional opportunities, retroactive seniority, pension adjustments, or restored vacation.  If the court finds that the violation is willful, the court may double any amount due as liquidated damages, but the court may not impose punitive damages.  Employers are prohibited from retaliating against anyone who exercises their rights under USERRA. 
More information about USERRA can be found at www.dol.gov/dol/vets.

Published Nov. 5, 2001