Legal
Threads
Due to the terrorist attacks of September 11, 2001,
President Bush signed an order authorizing the call up of up to 50,000 military
reservists. As a result of the President’s order, many employers have
questions about how to handle employee absences for military service and what to
do upon an employee’s completion of his or her service obligation.
Almost all states, including North and South Carolina, have their own
laws governing the treatment of employees who are called up for military or
National Guard service. However, this article will focus on employer obligations
under the federal Uniformed Services Employment and Reemployment Rights Act,
commonly referred to as USERRA.
USERRA’s main purposes are to provide for the
reemployment of persons who have been absent from employment because of service
in the uniformed services and to protect such individuals from discrimination
and retaliation on account of military service.
Under USERRA, the “uniformed services” include the Navy, the Marines,
Air Force, Army, Coast Guard, and their respective reserve units, and the Army
and Air National Guard, among others. USERRA applies regardless of whether an
employee’s service is voluntary or involuntary.
USERRA requires that employees provide their employers with
advance notice of their obligation to perform military service. However, no
notice is required when military necessity prevents the giving of notice or
where the giving of notice is impossible or unreasonable.
USERRA’s reemployment rights generally apply for up to
five years of military service. However, not all employees are entitled to
reemployment under USERRA. For example, employees who are separated from service
with dishonorable or bad conduct discharges and those whose separation was under
other than honorable conditions are not protected by USERRA.
Employees who have completed their military obligations
have certain time limits in which to apply for reemployment depending upon the
duration of their service. Employees whose military service lasts between 1 and
30 days must report for work on the first full regularly scheduled work period
that would fall eight hours after the end of the calendar day that marked the
completion of their obligation. Employees whose service obligation lasts between
31 and 180 days must make application for reemployment within 14 days after
completion of service. Employees whose service
obligation exceeds 181 days must make application for reemployment not
later than 90 days after their completion of military service. The reporting or
application deadlines are extended for up to two years for individuals who are
hospitalized or are convalescing because of a disability incurred or aggravated
during military service.
USERRA requires the application of the “escalator
principle” when returning military service members to work. Generally, this principle provides that a returning service
member must be reemployed into the position the person would have held had the
employee remained continuously employed.
Reemployment is excused if changed circumstances such as a
reduction in force have made reemployment impossible or unreasonable.
Additionally, if a service member incurs or aggravates a disability while in
military service, the employer must make reasonable efforts to accommodate the
individual’s disability so that the returning service member can perform the
functions of the position he would have held if he had been continuously
employed.
Returning service members are entitled to the seniority and
rights they would have had absent military service. Further, departing military
service members must be treated as if on a leave of absence. Accordingly, they
must be allowed whatever rights and benefits the employer provides to other
employees on a leave of absence.
USERRA contains detailed rules addressing the treatment of
pension and retirement plans. Also, USERRA provides for group health insurance
continuation similar to COBRA, even when the service member’s employer is not
otherwise covered by COBRA. Employees
may choose to use paid vacation benefits while on leave, but employers may not
require employees to use vacation time.
USERRA mandates that employees who return from active duty
may not be discharged without cause for one year if their military service was
for more than 181 days or for six months if their service was more than 30 days
but less than 180 days. The Act also prohibits discrimination or retaliation
against past members or current members of the uniformed services and persons
who apply to be a member of any of the branches of the uniformed services.
For more information on USERRA or state military leave laws, contact Jonathan Yarbrough in Asheville at (828) 277-8566, Penny Wofford in Spartanburg at (864) 542-8612 or Ken Carlson in Winston-Salem at (336) 750-0707.
