Employers' Obligations To Employees in the Uniformed Services

9/26/2001

The tragedy of September 11, 2001 has raised a myriad of issues for businesses and employers. The following is a brief summary of the protection afforded to individuals who leave their employment for military service. The law contains very specific requirements that must be complied with by all employers. Employers should consult legal counsel before making any attempt to apply the law or any information offered below to their specific situations.

This summary was written by Stacey A. DeKalb, Esq. Ms. DeKalb chairs the firm’s Employment Practices Section. Ms. DeKalb is admitted to practice in both Minnesota and Wisconsin. She may be reached at 612-336-9310, 800-752-4297, or stacey@lommen.com.

What Happens When an Employee Leaves to Serve the Country?

As our nation moves toward war following the national tragedy of September 11, 2001, employers are seeking information regarding their obligations to employees who leave their employment because of service in the uniformed services. The Uniformed Services Employment and Re-employment Rights Act of 1994 (USERRA) provides various employment and re-employment rights to covered employees who perform service in the uniformed services. USERRA defines "service in the uniformed service" to mean service in the Armed Forces, the National Guard, the Public Health Service or any other category designated by the President during time of war and includes active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty, and absence from work for an examination to determine the individual’s fitness to perform duty. The Act applies to all employers, regardless of size, as well as to state and federal governments and their political subdivisions.

Re-employment Rights

An employer may not deny initial employment, re-employment, retention in employment, promotion, or any benefit of employment to an eligible employee because of his or her service. While absent to perform military service for more than 30 days, an eligible employee, and the employee’s dependents, may elect to continue coverage under the employer’s health insurance plan at the employee’s expense. An employee is entitled, but not required, to use accrued vacation while performing military duty.

Within a reasonable time after termination of the military service, an employee is generally entitled to re-employment to the same position he or she left, or to a position of like seniority, status and pay, had no military leave been taken, provided the employee complies with certain time requirements for notifying the employer. Unless an employee has a disability incurred in or aggravated by the military service duty, the specific re-employment rights granted under USERRA depend upon the length of the employee’s absence for military service:

Service of 1 to 90 days: The employer must return the employee to the position the employee would have attained if he or she had been continuously employed, so long as the employee is qualified for the job or can become qualified after reasonable efforts. If the employee cannot qualify for that position, the employee must be re-employed in the position he or she left prior to military service or in a position that is the nearest approximation to that position, with full seniority. An employer may not offer "other jobs" of equivalent status.

Service of 91 or more days: The employer must return the employee to the position the employee would have attained if continuously employed, so long as the employee is qualified for the job or can become qualified after reasonable efforts. If the employee cannot become qualified, the employer is obligated to re-employ the employee in his or her former position, or a position of equivalent seniority, status or pay. Employees who have served more than 91 days who cannot qualify for the position he or she would have been employed in prior to military service, must be placed in the position the employee was employed in on the date he or she began military service, or a position of "like status," if he or she can perform the job duties of that position.

Upon re-employment, the employee is entitled to the seniority and other seniority-based rights and benefits that the employee had on the date military service begins, together with any additional seniority and seniority-based rights and benefits to which the employee would have been eligible had he or she been continuously employed. Such right to re-employment is conditioned on various factors, including,

A.    The employee must give advance written or oral notice of service to the employer, when possible;

B.     The cumulative length of the employee’s absence and all previous absences at the employer because of service in the uniformed services may not exceed five years;

C.     After termination of the military service, the employee must report to the employer, or submit an application of re-employment as follows:

1.   If the leave period is less than 31 days, the employee must report to his or her employer by the beginning of the first regularly scheduled work day that would fall eight hours after the end of the calendar day except that if, due to no fault of the employee, timely reporting back to work would be impossible or unreasonable, the employee must report back to work as soon as possible;

2.    If the leave period is between 31 and 180 days, the application for re-employment must be submitted no later than 14 days after completion of a person’s service, except that if timely submission of an application is impossible or unreasonable through no fault of the person, the application must be submitted as soon as possible;

3.    If the leave period is greater than 180 days, the employee must submit an application for re-employment within 90 days of completing the service.

An employee who is re-employed following military service may be discharged only for cause during a certain length of time after returning to his or her position. The length of the protected employment period is determined by the length of the military service.

Exceptions to Re-employment Rights

An employer is not required to re-employ an eligible employee under the following circumstances:

A.    The employer’s circumstances have changes such that re-employment is unreasonable or impossible;

B.    Re-employment would impose an undue hardship on the employer;

C.    The employee’s original employment was for a brief, nonrecurrent period and there was no reasonable expectation that the employment would continue indefinitely or for a substantial period.

The rights for eligible employees only apply to employees performing service in the uniformed services, who have not been terminated by a dishonorable or bad conduct discharge; separated under other than honorable conditions; dismissed by a sentence of a general court-martial, by commutation of sentence, or by order of the President in time of war; or dropped from the rolls because of absence without authority for three months or because sentenced to confinement.

Documentation Required

An employer has the right to request that an employee who has been on military leave for 31 or more days provide documentation establishing that the employee’s application for re-employment is timely; that the person has not exceeded the five-year service limitation; and the person does not have a disqualifying separation from service. An employer must still promptly re-employ an eligible employee who does not provide satisfactory documentation because it is not readily available or does not exist. If documentation later becomes available that establishes that one or more of the re-employment requirements was not met, the employer may terminate the employee effective immediately.

Other Provisions

USERRA contains many other specific provisions governing issues such as conflicting re-employment claims, pension/retirement plan rights, rights of employees who become disabled or aggravate a disability during the period of military service, and various other requirements. USERRA is administered by the United States Department of Labor. Because aspects of the law are technical and subject to change, employers are advised to consult legal counsel regarding specific USERRA issues.

FOR MORE INFORMATION
The Employment Practices Section provides representation in all types of employment disputes; counsel in the development of employment policies and procedures; and assistance with training, investigation and claim resolution.  The Section, chaired by Ms. DeKalb, includes attorneys Thomas Jacobson, Barry O'Neil and Sheila Bjorklund. If you have questions about the services of our Employment Practices Section, please contact Stacey DeKalb at 612-336-9310, 800-752-4297, or stacey@lommen.com.