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What Employers Must Do When Duty Calls

June 5, 2002
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Related Topics: Employee Leave, Featured Article
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As America's new war begins, so do calls for reservists to report for duty. And given the possibility that mobilization may escalate, many employers are dealing with legislation they've heard little about since Desert Storm: the Uniformed Services Employment and Reemployment Rights Act of 1994. Basically, this law protects employees from discrimination or reprisal for military service. Questions relating to the USERRA -- and many other aspects of employees in military service -- are bound to keep cropping up. Susan Potter Norton, a senior partner in the Miami office of Allen, Norton & Blue, offers advice.

First of all, will employers know if they have reservists in their workforce?
You could have some you'd not know about. I'm not aware of any requirement where employees are advised to disclose that they're reservists. What I'd do is send out an e-mail or communication that says, "We as a company have a great deal of respect for our armed forces, and we want anyone in our organization to know they're entitled to a military leave, not only as a matter of law but as a matter of company pride. If anyone has further questions, see human resources." I'd put a positive spin on it.
How much notice will HR have that an employee is about to leave -- and will employees know the amount of time they'll be gone?
They do have to give you notice -- as much as is reasonable -- unless it's a military necessity. The USERRA says it can be verbally or in writing. I'd certainly encourage a notice in writing. Often the particular unit is put on some sort of notice by their commanders. In our office, we have a staffer in the Marine reservists, and his colonel put them on notice. That means they might be needed. At one point he was on high alert. He literally left the office, went home, and changed. There are times when reservists will have an expectation of how long they'll be gone, but that's not binding. There may be an expectation -- they may be asked to serve for 40 days -- but that doesn't necessarily include the time for training or reassignment elsewhere.
Under the USERRA, what happens to employees' benefits while they're serving?
Their benefits continue for 31 days, just like there was no interruption, and the employer pays the exact same amount they'd pay if the employee was in active employment. After that, the employee has the right to up to 18 months of benefits continuation, based on COBRA rights. You can't require them to use their vacation or other paid leave, although they are entitled to do so if they'd like. As for pay, you don't have to pay them wages or salaries, but they are entitled to any normal benefits that would accrue or would be earned as a matter of seniority.
Does it matter how you staff that position while they're away?
No. The employer can hire someone temporarily, but the employee has the right to the job upon return.
Speaking of the employee's return, what are the guidelines there?
The employee definitely has a re-employment right. The reservist applies for re-employment. It's not an application, it's more showing up and advising the employer that the individual is ready to return to work rather than what people think of as a standard application.
The length of time they have to reapply depends on the length of time of their actual service. If they are absent from employment for service of 31 days or less, then they generally have a day to reapply. If it's between 31 days and 180, generally they have 14 days following their return from service. If it's more than 180 days, they have 90 days after discharge to reapply. If, upon return, the position has been promoted or upgraded due to length of service -- and seniority continues to rack up while they're serving -- they'd be entitled to that.
What if a company is staffed with knowledge workers, who are promoted by performance rather than seniority?
There's not an entitlement to a promotion unless it's a routine part of seniority. But upon reemployment, if the job has changed, the law requires the employer to make "reasonable efforts" to qualify that person for the job.
What exactly does "reasonable efforts" mean?
It's a strong obligation. The standard I often use with clients is: Would you do this for your mother or your child? Then you do it for the employee. Often you'll find if the employee is liked and respected, then almost anything is considered a reasonable effort.
What if the employee's position has been eliminated while he or she is serving?
If you've totally subcontracted the employee's department or closed the plant, OK. But in terms of a basic reduction in force, I'd be very cautious. You need to examine why this employee was selected for a layoff as opposed to any others. It's just ripe with the potential for litigation.
Couldn't employers err the other way, and unfairly favor reservists over civilian employees when it comes to layoffs?
Reservists don't get priority. But if other employees (who are civilians) have been transferred rather than laid off, I'd ask why. What was unique about them? If the reservist had been present, would he or she have been qualified for a transfer?
Basically, examine your selection process. I wouldn't take it on face value. If you only transferred individuals with 20-plus years of seniority or who could perform certain tasks, and this individual had just four years' seniority and couldn't perform the tasks, I think that's fine. You've got an excellent defense and it would probably never be challenged, or at least not successfully.
But I'd look behind the blanket statement that the job was eliminated because of a reduction in force. The fact that the employee was on leave can't be the motivating factor in any adverse employment decision. As with any other law that's designed to protect employees, it's going to be the employer's burden to show that it was not a motivating factor.
If a returning vet believes that his or her rights were violated under the USERRA, what course of action is taken?
They can appeal to the Veterans' Employment and Training Service. If that's not resolved, the complaint can be sent to the Attorney General. In addition, though, the individuals have the option to file a private court action at any time -- unless the Attorney General has already agreed to take it to court. In a private action, they can be awarded back pay, benefits (if it was found to be willful, the benefits can be doubled), attorneys' fees, and other litigation expenses.
Finally, what happens if the employee returns disabled?
The employer has to make a reasonable effort to re-employ the person. They certainly have to make reasonable accommodation for physical and mental limitations. Err on the side of caution. The best thing to ask the employee is: What can I do to enable you to do this job? What position do you think you can do? Usually it will resolve in either a successful replacement or a mutual acknowledgment that it's not going to work. But again, the employer should treat the person like his mother or his child -- depending on who they like the best.

Workforce, December 2001, pp. 78-80 -- Subscribe Now!

The information contained here is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.

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