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POST-SEPTEMBER 11 SERIES Support Our Troops: It's the Law!Thousands of members of the military reserves and National Guard have
recently been called to active duty. Thousands more will likely be called.
In 1994, after the Gulf War, Congress passed the Uniformed Services
Employment and Reemployment Rights Act, 38 U.S.C. §4301, et seq.
("the Act"). The Act provides three primary protections for
employees called to military duty: (1) benefit protection and continuation
while on duty, (2) a right of reinstatement upon return from duty, and (3)
protection from discrimination based on their military status. Coverage of the ActAll employers, regardless of size, are covered by the Act. Foreign work sites are also covered, if the employing entity is organized in the United States or is controlled by an entity that is organized in the United States. The protections of the Act are enjoyed by all members of the
"uniformed services," which includes the Air Force, Army, Coast
Guard, Marines, and Navy. Members of the Air National Guard, Army National
Guard, and the commissioned corps of the Public Health Service are also
covered. In time of war or national emergency, the President of the United
States can designate additional categories of persons protected by the
Act. The protections apply to both voluntary and involuntary service. Prohibition Against Discrimination and RetaliationThe Act contains prohibitions against both discrimination and
retaliation. Specifically, the Act prohibits discrimination against a
person (applicant or employee) who is a member of, applies to be a member
of, performs, has performed, applies to perform, or has an obligation to
perform duties in a uniformed service. It also prohibits retaliation
against any person who has exercised a right under the Act or participated
in an investigation under the Act. Notice to the EmployerEmployees leaving their jobs to report to duty are required to give
advance notice of their military duties to their employers, unless giving
notice is impossible or unreasonable. The notice can be written or oral. Benefit ContinuationEmployees on qualified military leave are entitled to continuation of certain benefits. With regard to health benefits, the employer's obligation is determined by the length of the employee's military service. For periods of military service of 1-30 days, the employer is required to continue health benefits, paying the employer's regular contribution toward those benefits. For longer periods of military duty, the employee is entitled to purchase continued coverage for up to 18 months. This obligation exists even if the employer is a small business that is otherwise exempt from COBRA. Waiting periods or preexisting condition exclusions cannot be imposed against a returning employee. Returning employees are entitled to full credit under any retirement plan for their military service. This means that all employer contributions and benefit adjustments must be made as if the employee was continuously employed. Employees are entitled to make up any salary deferrals for retirement contributions they missed while on military leave. Employees do not continue to accrue vacation while on leave, unless they would normally due so under the employer's policies. Employees cannot be forced to use vacation while on leave. On the other hand, employees must, upon request, be allowed to use vacation pay during military leave. Other seniority-based benefits are treated as if the employee never
left work. The employee's rights continue to accrue and progress as if
there were no break in service. For other non-seniority based benefits,
employees are treated the same as employees on other types of leave. Right of ReinstatementUpon returning from military service of 5 years or less, the employee must be reinstated. If the employee's leave was 90 days or less, the employer must reinstate the employee to: (1) the position the employee would have attained if the employee had remained continuously employed and not taken the leave, or (2) the position the employee last held (if the employee is not qualified to perform the duties of (1) above, after training by the employer). If the leave was more than 90 days long, the employer must reinstate the employee to: (1) the position the employee would have attained if the employee had remained continuously employed or a position of like seniority, status, and pay, or (2) the position the employee last held or a position of like seniority, status, and pay (if the employee is not qualified to perform the duties of (1) above, after training by the employer). The Act also requires the employer to give the employee all promotions and pay increases that the employee would have received had the employee remained continuously employed. The right of reinstatement is not without limitation. Only employees
who received honorable discharges are protected by the Act. Furthermore,
the employer is not required to reinstate the employee when: (1) the
employer's circumstances have so changed that reinstatement would be
impossible or unreasonable; (2) reinstatement would impose an undue
hardship on the employer; and (3) the job that the employee left was for a
brief, non-recurrent period and there was no reasonable expectation that
the job would continue indefinitely or for a significant period. Returning to WorkTo be entitled to reinstatement, the employee must return to work within a certain period of time after completing military service. If the employee's period of service was 1-30 days, the employee is required to report to the employer on the first regularly scheduled work day beginning 8 hours after returning home from service. If the employee's period of service was 31-180 days, the employee must apply for reemployment within 14 days of completing service. For periods of duty more than 180 days long, the application for reemployment must be made within 90 days after completing service. If the employee is wounded or injured during the military service, the employee may have up to 2 years to reapply. Once reemployed, some employees enjoy additional protection and can
only be terminated "for cause," even if the employment
relationship was at will. That protection may last for up to a year,
depending on the length of the military service. Employees returning to
work after a period military service of 31 to 180 days may only be
terminated "for cause" during the 180 days after the employee
returns to work. Employees returning after service of more than 180 days
can only be terminated "for cause" for the 1 year period
following their return to work. Remedies for ViolationAn employer that violates the discrimination, reinstatement, or
retaliation provisions of the Act can be held liable for damages. A
successful plaintiff is entitled to recover legal and equitable relief in
the form of reinstatement, lost wages and benefits, liquidated damages for
a willful violation, attorneys' fees, expert witness fees, and litigation
expenses. State LawEmployers should remember to consider state law when dealing with
military leave issues. The Act preempts state law, to the extent that
state law reduces, limits, or eliminates any right or benefit provided by
the Act. However, states are free to enact laws that provide greater
protections for employees. For more information on the Uniformed Services Employment and Reemployment Act, call:
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