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Military Leaves and USERRA
By Robert
K. Stewart, Jr. and Mark
J. Hackett
[Feb. 2003]
With war in Iraq looming, as of February 19, 2003, over 151,000
members of the Reserves and National Guard are currently serving
on active duty, with more call-ups likely in the coming months.
That represents an increase of nearly 100,000 reservists serving
in active duty since the beginning of the year. This dramatic increase
in the reserve call-up has important implications for employers
whose employees are called to active duty.
USERRA
The Uniformed Services Employment and Reemployment Rights Act ("USERRA"),
38 U.S.C. § 4301, et seq., is the most important law employers
need to understand when dealing with employees called to military
service or training. This federal law applies to all American employers,
regardless of size, and provides job protection and special employment
benefits rights to employees on military leave.
Qualifying Service. USERRA applies to all employees voluntarily
or involuntarily in the uniformed services of the United States,
which includes all branches of the military, including the Army,
Navy, Air Force, Marines, Coast Guard, Army National Guard and Air
National Guard, the Public Health Service's commissioned corps,
and any other category of persons designated by the president in
time of war or national emergency. USERRA’s protections apply
to full-time and part-time employees, but not to short-term temporary
employees. Employees are protected while on active duty or attending
active or inactive duty training, including weekend and annual reserve
and National Guard training. While USERRA does not apply to service
in state militias, state laws may afford comparable protections.
Length of Leave. An employee is generally entitled to take
up to five years of leave for military service under USERRA. Under
certain circumstances, that time period can be extended, such as
when the employee is required to remain on duty after his or her
five-year military leave expires because of a war or other national
emergency. An employee must provide appropriate notice of the need
for leave to his or her employer.
Compensation During Leave. USERRA does not require employers
to compensate employees during absences due to military service.
Many employers, however, choose to pay their employees a portion
or all of their pay for some period of time during military leave.
Employees may, but are not required, to use accrued paid vacation
while performing military duty.
Benefits Generally. Employees on military leave are entitled
to the same benefits provided to employees who are on other forms
of leave. For example, if employers typically provide continued
life or disability insurance benefits to employees on unpaid leave,
these benefits must be provided to employees on military leave.
Special Rules for Health Insurance Benefits. USERRA provides
a COBRA-like continuation of coverage option for health insurance
benefits. An employee on military leave for more than 30 days may
continue health insurance benefits for up to 18 months, including
coverage for the employee’s family. The cost to the employee
is capped at 102 percent of the regular premium. When an employee
returns from military leave, a plan may not impose a waiting period
or any exclusion that would not have been applied had the individual
not left employment for military service. However, a plan may include
exclusions for service-related injuries or illnesses.
Reinstatement Rights. Perhaps the most important protection
afforded by USERRA is job protection for employees returning from
military leave. Reinstatement rights vary depending upon the length
of the military leave, but generally an employee must be reinstated
to the position the employee would have occupied had he or she remained
on the job, including any promotions the employee would likely have
received if he or she had remained continuously employed. If necessary,
an employer must provide training to an employee to enable him or
her to perform the job. In addition, reasonable efforts must be
made to accommodate an employee disabled while on military duty.
If the returning employee cannot perform the job the employee would
have occupied had he or she remained on the job, the employer must
place the employee in an available alternative position with comparable
compensation, benefits, duties and opportunity for advancement.
Reinstatement rights may be lost if the employer’s circumstances
have changed so as to make reemployment an undue hardship, impossible
or unreasonable.
The statute requires a returning employee to apply for reinstatement
in a timely fashion, with “timely” being determined by
the length of the military leave. Reinstated employees may only
be discharged for cause during a specified period of time after
they return to work. As with the right to reinstatement itself,
the length of this time period depends on the duration of the leave.
Prohibition Against Discrimination. USERRA prohibits employers
from discriminating against, or retaliating against an individual
because of his or her affiliation with a military service organization.
For example, USERRA makes it unlawful to refuse to hire an applicant
because he or she serves in the military reserves. It is also unlawful
to terminate a reservist employee's employment because he or she
is called to active duty. Similarly, an employer cannot terminate
an employee because he or she enlists in the military.
Some employers may consider creation of a list of employees who
have military reserve obligations for the purpose of preparing contingency
plans in the event of a mass call-up or to assess their potential
financial obligations under USERRA. While we are unaware of any
decisions forbidding this practice, such a list might be used against
an employer to help establish a prima facie case of discrimination
in the event of a claimed violation of USERRA. Suggested practices
to help minimize this risk include making disclosures voluntary,
similar to affirmative action information, and strictly limiting
access to the information. The same considerations apply to inquiries
concerning military reserve status during the hiring process.
Enforcement and Penalties. USERRA is enforced by the United
States Department of Labor’s Veterans’ Employment and
Training Service. Both the federal government and individual employees
can sue to enforce USERRA leave provisions. Possible penalties for
USERRA violations include lost wages and benefits, liquidated damages
in the case of willful violations, attorneys' fees, expert witness
fees, and other litigation costs.
OTHER LAWS
Several other federal laws provide protections and grant special
rights to members of the military, including the Soldiers’
and Sailors’ Civil Relief Act, 50 U.S.C. App. § 501 et
seq. (restrictions on debt collection and other civil actions against
persons on active duty) and the Vietnam Era Veterans' Readjustment
Assistance Act of 1974, 38 USC § 4212 (federal contractor affirmative
action requirement for hiring veterans of the Vietnam War). In addition,
state laws often provide protections for members of the military.
WHAT SHOULD YOU DO?
It is a good idea for employers to adopt a military leave policy
or review any existing policies with counsel for compliance with
USERRA and other applicable laws. Employers may consider granting
additional rights beyond those required by federal law, such as
making up the pay difference between the employees’ normal
compensation and their military pay for a defined period of time.
Employers should also review employee benefits plans and practices
to assure proper treatment of participants on and returning from
military leave.
HOW CAN DAVIS WRIGHT TREMAINE HELP?
USERRA and the other federal and state laws protecting military
personnel impose obligations on employers at every stage of the
employment relationship. They are complicated and easily misunderstood,
especially since most employers have very little experience with
military leave issues. Davis Wright Tremaine’s employment and
employee benefits attorneys can help you understand your rights
and obligations and prepare you to deal with employees in the military
services by preparing or reviewing military leave policies, reviewing
benefits policies and advising you when issues arise.
Note: DWT will be hosting a breakfast briefing, “Managing
Military Leaves of Absence,” in Portland on April 10, 2003
addressing USERRA and other employment issues arising when employees
volunteer or are called to military service.
A model military leave policy is also available for $25 on DWT's
Online Bookstore.
Any questions about this Advisory should be
directed to:
Robert K. Stewart,
Jr., Anchorage, (907) 257-5336, bobstewart@dwt.com
Mark J. Hackett,
Portland, (503) 778-5208, markhackett@dwt.com
This Employment Law Advisory is a publication
of the Employment Law Department of Davis Wright Tremaine LLP. Our
purpose in publishing this Advisory is to inform our clients and
friends of recent developments in employment law. It is not intended,
nor should it be used, as a substitute for specific legal advice
as legal counsel may only be given in response to inquiries regarding
particular situations.
Copyright © 2003, Davis Wright
Tremaine LLP.
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