Military Leave Laws and veteran discrimination (USERRA) (SNEED TO ADD)

GUARDSMEN AND RESERVISTS NEED TO KNOW THEIR RIGHTS UNDER THE UNIFORMED SERVICES EMPLOYMENT & REEMPLOYMENT RIGHTS ACT (USERRA)

Over 60 years ago Congress enacted laws to protect employees "called to the colors" not to be penalized for absence from their civilian jobs. First passed as the Selective Training and Service Act of 1940, federal veterans employment laws were modified several times, until October 1994, when President Clinton signed into law a comprehensive revision known as the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Like its predecessors, USERRA guarantees the rights of military service members to take a leave of absence from their civilian jobs for active military service and to return to their jobs with accrued seniority and other employment protections.

The USERRA’S Core Protections. Subject to various limitations and exceptions, the statute’s principal protections include:

Employee Obligations For Re-employment Rights. To be entitled to their re-employment benefits, employees must:

State and Local Laws. Some states provide additional rights to returning employees. Those rights may be more extensive than those under USERRA. Also, most states also their own laws regarding public employees, as well as laws regarding National Guardsmen called into state service.

Resolving USERRA Disputes. There are several avenues to resolve USERRA disputes, ranging progressively as follows:

• Informal discussions between the employee and employer; or
• Employee-initiated assistance from the National Committee for Employer Support of the Guard and Reserve ESGR (Washington, D.C. based committee which has no enforcement powers), which acts as a quasi-mediator in an informal setting to resolve issues;
• Investigation by the Department of Labor – Veterans Training Service (DOL-VETS), which will investigate claims but has no enforcement powers;
• Lawsuit filed by the Department of Justice / local U.S. Attorney; and
• Lawsuit filed by the individual or an attorney on his or her behalf.

FREQUENTLY ASKED QUESTIONS

What if an employee volunteers for military service? The type of service does not matter. Unlike prior veterans’ statutes, USERRA protects employees regardless of whether they volunteered or were ordered to active duty.

When is prior notice to the civilian employer required? The service member (or a representative or his or her service) must give advanced written or verbal notice to the employer. USERRA does not specify how much advance notice is required, but service members are advised to provide as much advance notice to their employers as possible. Notice is not required if it’s precluded by military necessity or, if the giving of such notice is otherwise impossible or unreasonable. It will likely be rare however, when no advance notice is required.

What documentation must the employee provide? Because the advance prior notice of the military leave can be written or verbal, an employer cannot demand documentation as to the prior notice. However, documentation on return is different, and an employer can demand appropriate documentation for absences of 31 days or longer. The documentation must reflect that the application for reemployment is timely, the absence has not exceeded five years, and the person’s service was not disqualifying. Importantly though, employers cannot delay reemployment if the documentation is unavailable.

Must an employer pay an employee while he or she is on active duty? Subject to narrow exceptions, the USERRA does not require that employees be paid while on military leave. However, over an above the statute’s minimum requirements, some employers voluntarily have ‘pay differential’ policies that make up the difference between military pay and allowances and an employee’s regular pay. Employers should review such policies to ensure that the extent of these obligations is consistent with current business objectives.

What is the "escalator principle?" Employers must treat returning service members as if they had remained continuously employed for purposes of the position as well as pay and benefits to which they return. For example, if similarly employed individuals who joined the company in 1996 currently earn $15 per hour, then a similarly situated returning service member who joined the company in 1996 should be paid $15 per hour even if he or she had been on active duty for extended periods during that time. As another example, if an apprentice electrician left the company for active military duty in 1999 and returned in 2001, the employee might be entitled to a position as a journeyman electrician. As the United States Supreme Court once put it over 50 years ago, the veteran "does not step back on the seniority escalator at the point he stepped off. He steps back on the precise point he would have occupied had he kept his position continuously."

Is an employee entitled to bonuses or raises that occurred while he was away? It depends. Under the escalator principle, upon return an employee is entitled to those benefits which he or she would have earned based on longevity. The standard is whether there is a reasonable certainty that, had the employee remained continuously employed, he or she would have earned the bonus or the raise. For bonuses or raises that everyone received, this is an easy issue. For individual raises and bonuses, or those merit-base, the questions can be more difficult.

What about employees serving in the National Guard? National Guard members sometimes perform federal service (e.g., during annual training) and sometimes perform state service (e.g., during some disasters). USERRA only applies to National Guard members performing federal service, but many state laws afford similar protection to individuals performing state service. To determine compliance obligations under these circumstances, employers should obtain a copy of the employee’s orders and consult with an attorney.

Is there a limit on the length of military service under the USERRA protections? Under USERRA employees are only entitled to protection during cumulative periods of military leave of up to five years, but there are many exceptions to this general limitation. For example, leave time for active duty by order of a Presidential declaration would normally not count as part of the five year period. Routine weekend drill and two week annual training by reservists and guardsmen also do not count towards the five year limit.

Are smaller companies or employers excluded from the USERRA? No. Unlike most other federal anti-discrimination statutes which exclude companies with less than 15 or 20 employees, the USERRA has no size-cut off. Thus smaller-sized employers are not immune from the USERRA’s oft-demanding requirements.

When Can An Employer Deny Reemployment? The denial of reemployment is the exception not the rule, because the USERRA is written such that employers "shall" reinstate the qualified employee. Reemployment can be denied where the employee fails to produce documentation that the absences have not exceeded five years, application for reemployment was timely, or the service was not disqualifying. Additionally, the employer can deny reinstatement if the employer proves that it would be impossible or unreasonable to reemploy the employee.

How is USERRA Interpreted and Enforced? For years courts have interpreted veterans laws in favor of servicepersons. As a practical matter this rule of statutory construction means that if there are any ambiguities, the USERRA may be interpreted in a manner that favors the veteran. The federal bodies assigned to investigate and enforce the USERRA (the ESGR, Department of Labor, and Department of Justice) have taken this statutory rule to heart, and are unabashedly and admittedly pro-veteran when it comes to USERRA matters.

Can an employer require an employee to use earned vacation time while performing military service? No, employees are entitled use to earned vacation while on leave but generally may not be required to do so.

What about seniority, longevity, or years of service for the rate that vacation is earned? For many companies, the rate of vacation accrual is based on longevity or seniority. For example, take a company where employees with 0-2 years are entitled to 10 days vacation per year, 3-5 years are entitled to 15 days vacation per year and so on. If a person has 2 years with the company, and then goes on military leave of one year, upon their return, for vacation purposes, they are treated as if they have been with the company for three years. This rule embodies the escalator principle and is well established under the law.

Does an employee continue to earn vacation while away? This is more complicated issue than the rate of vacation accrual. Nowhere does the USERRA expressly state that employees continue to earn vacation while absent on military leave. However, in some circumstances three interrelated statutory provisions may require that service persons continue to accrue vacation. After the issue turns on the each company’s vacation and absence policies in general, and not just the military leave policy. Further complicating this issue is that Departments of Labor and Justice have interpreted the statute extremely broadly, relying on legislative history to questionably expand a veteran’s possible vacation accrual rights.

How does the USERRA treat Health Benefits? The USERRA has specific provisions regarding health plans, with two key components as follows: (1) a COBRA-type continuation coverage, and (2) immediate reinstatement to the plan on return from military duty.

How does the USERRA treat Retirement Plans? A returning veteran meeting the eligibility criteria is entitled to be treated, for seniority purposes, as if he or she had been continuously employed during the period when away from the job for service in the uniformed services. What the employer’s and employee’s contribution and benefit rights and obligations are largely turns on whether the retirement plan is a defined benefit plan or a defined contribution plan.

Rob Sneed is a reservist Army JAG and a civilian attorney with the Foster Law firm. He can be reached at (864) 242-6200 or rsneed@fosterfoster.com

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