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In the March 17, 2003 issue
of San Diego Daily Transcript, an
article discussing the rights of military
reservists and employers was published. The
article was written by Lois
Kosch and Robin
Wofford of Wilson, Petty, Kosmo
& Turner. The full text of the
article appears below:
By Robin
W. Wofford and Lois
M. Kosch
The war on terrorism and
the possibility of war with Iraq has depleted
many businesses of their most valuable commodity
-- employees. As of mid-February, more than
150,000 National Guard and U.S. Armed Forces
Reserve members had been called to active
duty. Nearly 900,000 reservists are subject
to mobilization, a majority of who work full-time
in civilian jobs. It is estimated that one
in three will be called to active duty if
the U.S goes to war.
In the event of war, employers
could suffer losses in personnel, which could
place hardships on businesses. While the reserve
status of an employee may not even be known,
an employer must be aware of the laws that
provide job and benefit protection to reservists
(including guardsmen) who need to leave their
positions for either active or inactive duty.
As an overview, imagine
an employee is on an escalator that keeps
moving upward even while they step off of
it for military duty. Upon return the employee
is entitled to stand on the same step the
employee was on when the leave began, even
if that step is now in a much higher spot,
even if it means the employee in that position
is now entitled to command higher salary and
more benefits.
Although the Uniform Services
Employment and Re-employment Rights Act (USERRA)
addresses the rights and obligations of both
the employer and employee, its primary purpose
is to protect the rights of employees who
serve as reservists in the armed forces. A
violation of USERRA occurs when a person's
membership, application for membership, service,
application for service or obligation for
service in the uniformed services is a motivating
factor in the employer's action, unless the
employer can prove that the action would have
been taken in the absence of such membership,
application for membership, service, application
for service or obligation for service.
USERRA protects every employee
who is a member of or performs service in
a uniformed service. Every employer, including
the state and federal government, is subject
to USERRA, regardless of size or type. There
are no exceptions for small businesses.
Employee's obligations
An employee's primary obligation
is to give the employer prior notice of the
need for leave and notification of intent
to return. However, the form, timing and type
of notice are very broad and there are exceptions.
Oral notification is adequate,
and if the employee is "shipped out"
immediately, the notice requirement may be
delayed or waived. Once the service is completed,
the employee must promptly return to work.
The definition of "prompt" depends
on the length of service.
Pay: An employer is not
obligated to pay an employee who is on military
leave of absence. The important point here
is consistency. While the employer has the
option of paying an employee who is away on
military service, such a policy must be extended
uniformly to all reservists.
Vacation: An employer cannot
require an employee to use vacation for military
service but cannot prevent an employee from
using accrued vacation for military service.
Benefits: An employer is
required to continue health insurance, at
normal cost to the employee, for 30 days while
on military duty. After 30 days, the employer
must continue coverage up to 18 months, but
can pass on 102 percent of the costs to the
employee. In addition, a reservist employee
returning from military service has a right
to pension credit as if he or she was never
absent. If the pension plan involves employee
contributions, the returning reservist employee
must be allowed to make up any missed contributions
over a period up to three times the length
of military service, but not more than five
years.
Status and seniority: USERRA
requires a returning reservist be placed in
the same position he or she would have been
in had employment not been interrupted by
military service so long as the person is
qualified for the job or can become qualified
after reasonable efforts by the employer.
The position to which an employee is reinstated
must reflect the pay raises and promotions
received by peers in the company who handle
the same type of work and the returning service
member must have the seniority the person
would have had if he or she had remained continuously
employed.
Protection against discharge:
Returning reservist employees are protected
from discharge, except for cause, for a certain
length of time after their return. The length
of protection varies, and may override the
doctrine of at-will employment.
Discrimination: USERRA prohibits
discrimination based on military affiliation.
There are limited exceptions
that excuse an employer from the obligations
USERRA imposes. First, if there are changed
circumstances that make reemployment impossible
or unreasonable.
Second, if the initial employment
was for a brief, nonrecurring period with
no reasonable expectation it would continue
for a significant period (such as seasonal
work), then an employer is excused.
Undue hardship, which USERRA
defines as "actions requiring significant
difficulty or expense," excuses an employer
from rehiring returning reservists. Whether
something is an undue hardship involves a
multifactored analysis that leans in favor
of reemployment.
Enforcement and remedies
USERRA has no statute of
limitations on a cause of action against an
employer. An employer may be liable for compensatory,
liquidated and equitable damages for a violation
including lost wages, attorneys' fees, expert
witness fees "and other litigation expenses."
What should employers do?
- Understand that the possibility
of an applicant or employee being called
to active duty for a potentially extended
period of time may not be a factor in your
decisions, including those to hire, lay
off and/or promote.
- Train front-line managers
on the protections granted reservists by
law.
- If you have a substantial
number of reservist employees, formulate
a contingency plan for how to accommodate
the sudden absence of many employees, including
the cross training of employees.
Reservists are playing an
increased role in the armed forces and employers
must be mindful of their legal obligations.
This article only scratches the surface of
complex federal legislation. If there are
any uncertainties on how to proceed in this
area, consult legal counsel.
Wofford, Esq., and Kosch,
Esq., are partners at Wilson Petty Kosmo &
Turner. Both practice employment law and litigation,
including counseling businesses on employment
issues.
For more on this article
and others, please visit San Diego Daily Transcript's
website at www.sddt.com.
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