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As Americans respond to the events of September 11, 2001, employers must be aware of their obligation to accommodate employees who are called for active duty in the National Guard and Military Reserve. Federal statute 38 U.S.C. 43 - Employment and Reemployment Rights of Members of the Uniformed Services Act, outlines the requirements for administering leave and reemploying personnel who are called to military service. The Act prohibits employers from discriminating against an individual because of his or her military status with respect to hiring, promotion, compensation, terms and conditions of employment, discharge, retaliation and advertising for openings. The intent of the law is to protect individuals from being penalized for being called to military duty.
What employers and employees are covered?
Under the statute, the term employee means "any person employed by an employer." Similarly, "the term employer means any person, institution, organization, or other entity that pays salary or wages for work performed . . ." These definitions essentially cover all employers and all permanent full and part-time employees. Temporary employees do not all under the protection of this Act.
What types of leaves are covered?
The statute covers employees who are called to the performance of a duty on a voluntary or involuntary basis in uniformed service and includes the following types of duty:
- active duty
- inactive duty training
- active duty for training
- National Guard duty
- initial active duty for training
- fitness for duty examinations
Which employees are considered eligible for military leave rights?
The rights of a veteran or reservist employee are triggered when the employee has done the following:
- The employee provides written or verbal advance notice they will be gone for military service. This includes voluntary enlistment in the armed services. No notice is required if it is unreasonable or impossible to give notice.
- The employee is not on leave for a cumulative total of more than five (5) years.
- The employee performs satisfactory military service and is honorably discharged or released from duty.
- The employee applies for reemployment within the appropriate time limits:
- For leaves less than 31 days or fitness for duty examinations, the employee must report to the employer on the first regularly scheduled work day after 8 hours has passed after the employee returns.
- For leaves from 31 to 181 days, the employee must submit an application for reemployment not later than 14 days after he or she returns.
- For leaves longer than 180 days, the employee must submit an application for reemployment within 90 days after their return. However, none of the above time limits apply if reporting to the employer was unreasonable or impossible.
- The employee possesses the qualifications necessary to perform the duties of the non-temporary position for which he or she seeks reemployment, including all physical and mental qualifications, the ability to meet performance standards and work-related conduct.
Do I have to pay the employee while they are on leave?
Employers are not obligated to pay employees wages while they are on leave. Employees may, however, use any accrued paid leave they are entitled to, such as vacation, while on leave.
Do employees on leave receive benefits?
- Employees are entitled to all the seniority they would have otherwise accrued if they had not been on leave. This means that for seniority based benefits such as vacation, sick days, and pension, the employee's benefit levels include all the time they were serving in the military.
- For any non-seniority or performance-based benefits, such as stock options, bonuses, or profit sharing, the employee must be treated like any other employee who is out on a leave of absence.
- If the leave is less than 30 days, the employer and employee each must pay their normal share of health care costs for the employee. If the leave is more than 30 days, the employer must allow the employee to purchase health insurance from the employer at no more that 102% of the employer's costs. An employee may elect to continue insurance coverage for a period of time up to 18 months.
- For the purpose of pension plans, the employee continues to accrue time toward a fixed benefits plan, or if the company has a plan similar to a 401(k), the employer must continue to similarly provide any matching funds for any funds the employee might contribute.
What are the obligations of the employer when the employee returns from service?
If an individual has timely reapplied and met all qualifications, it is the obligation of the individual's pre-service employer, or the successor employer, to restore that individual to the same or a similar position of like seniority, status and pay, unless the employer's circumstances have so changed as to make it unreasonable or impossible to do so. This is accomplished by:
- Restoring the individual to his or her former position at the appropriate levels of seniority, status and pay;
- Offering a position similar to the other job with regard to seniority, status and pay even though the position is not identical to the former job;
- Offering a job identical to the one formerly held but scheduling the veteran's work assignments on a shift different from the one formerly worked; or
- Offering to reemploy the veteran in the most similar position to his or her former position among the positions created by the elimination of the former position.
Are there any conditions when an employer does not have to comply with the Act?
If the employer's circumstances have so changed that reemployment would be unreasonable or impossible, or if it causes undue hardship for the employer, or if the employee's previous job wasn't expected to be long term, the employer does not have to reemploy the individual. The employer must prove that reemployment would be more than inconvenient or undesirable. An employer is not required to create a job to reemploy the veteran.
What about discipline and discharge of veterans?
The federal statute specifically states that for the first year after an employee is back, if they were on leave for 181 or more days, he or she can only be discharged for cause. If the employee was gone for a period of time from 31 to 180 days, he or she can only be discharged for cause during their first 180 days back.
How is this law enforced?
Employees who believe that they are discriminated against and have not received the benefits provided in the Act from an employer because of their veterans' status have the right to file a complaint with the Secretary of Veterans Affairs. The Secretary will then investigate the complaint and, if appropriate, try to reach a settlement with the employer. If the Secretary is unable to reach a settlement, the matter can be referred to the U.S. Attorney General, who will file and prosecute a complaint in federal court on behalf of the employee. The possible remedies to an employee from such an action include back pay and reinstatement. If it is found that the employer's actions were willful, the damages awarded for back pay may be doubled. Further, none of the costs of filing and investigating a complaint are borne by the employee. Also, any state statute of limitations does not affect an action under this Act.
Conclusion
It is important that employers monitor the personnel processes applied to employees serving in the military. There are three critical factors to keep in mind: First, the employer must be prepared to not only reemploy the individual, they must also give them any promotions or raises or other job changes they would have received, had they not been gone. Second, they must make sure the employees receive any benefits to which they would have been otherwise entitled. And third, the employer must be aware that for either the first six (6) months, or year, after the employee returns, he or she can only be discharged for cause. This is only a brief summary of employer obligations. If you have a question about how to apply the state or federal statute, please contact legal counsel.
For more information, please call (414) 423-1330 or e-mail educational services.
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