Military Leave Rights: Obligations for Employers
December 2001
Uniformed Services Employment and Reemployment
Rights Act 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. Paul
Siegel provides the details.
by Paul
J. Siegel, Esq.
Jackson, Lewis,
Schnitzler & Krupman
In 1994 statutory reemployment rights for military members were revised with
the signing of the Uniformed Services Employment and Reemployment Rights Act
of 1994 (USERRA), 38 U.S.C. §§ 4301-4333. 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.
Employer Obligations to Employees Requesting Military Leave
In general, employers must provide the following to covered employees who
are not in temporary positions:
- An unpaid leave of absence for a period not to exceed 5 years to perform
any form of military service, whether voluntarily or involuntarily, called
or activated, such as being placed on active duty, for annual training,
and for training weekends. A cautionary note regarding the leave being unpaid:
under the Fair Labor Standards Act: if an exempt employee works any part
of a week, the salary for the entire week must be paid. Therefore, if an
exempt employee works any part of a week, then spends the rest of the week
in military service, the salary for the entire week must be paid. However,
in that case, the amount of the military pay for the week may be offset
against the salary.
- While on leave, the employee is entitled to those rights and benefits
not determined by seniority and generally provided to individuals of similar
status on a leave of absence.
- Upon return from leave, reinstatement to the position that the employee
would have held if his or her continuous employment had not been interrupted
(the "escalator principle"). This obligation includes making reasonable
effort to train the employee to make him or her qualified for the escalator
position. If the employee cannot be made qualified, the employee must be
returned to the position he or she occupied when going out on leave.
- Upon return from leave, all seniority and seniority-based rights and
benefits as if the employee had remained continuously employed. Typical
benefits covered under USERRA would include vacation allowances, pension
credit and 401(k) contributions.
- Continuation of medical benefits under the same terms and conditions
as when actively employed if military service is less than 31 days.
- Continuation of medical benefits during the leave under terms similar
to those of COBRA.
- Protection from discharge upon return to work except for cause for a
period of time depending on the length of military service.
Employee Obligations to Employers under USERRA
To be entitled to these benefits, employees must do the following:
- Give timely notice of their need to perform military service except
as required by military necessity or unless impossible or unreasonable.
- Apply for reemployment within a set time after release from military
service. In the case of service of less than 31 days, the individual must
normally return to work on the first workday after release from military
service. In the case of service lasting between 31 and 180 days, the individual
must normally reapply within 14 days after completing active service. In
the case of service lasting more than 180 days, the individual must normally
reapply within 90 days after the completion of service.
- Be released from active military service under honorable conditions
(with an honorable or general discharge).
Other Issues
USERRA also prohibits discrimination against service members in employment
and provides training obligations for employers under certain circumstances.
Employers do not have to reemploy a returning service member if "the employer's
circumstances have so changed as to make such reemployment impossible or unreasonable."
In addition, employees hired for a brief, nonrecurring period without reasonable
expectation that employment will continue indefinitely or for a significant
time are not entitled to reinstatement rights.
It should be noted that some states provide additional rights to returning
employees. Those rights may be more extensive than those under USERRA.
Frequently Asked Questions
What if an employee volunteers for military service? USERRA does not distinguish between volunteers and those ordered to perform
military service. Employees are protected regardless of whether they volunteered
or were ordered involuntarily to active duty.
Must an employer pay an employee while he or she is
on active duty? USERRA does not require employers to pay employees while
on military leave. Some employers voluntarily have 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. If an exempt employee works
any part of a week, the salary for the entire week must be paid. Therefore,
if an exempt employee works any part of a week, then spends the rest of the
week in military service, the salary for the entire week must be paid. However,
in that case, the amount of the military pay for the week may be offset against
the salary.
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 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.
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 5 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 5-year period.
Please note: This summary is provided
for informational purposes only and is not rendered as legal advice. Employers
should consult counsel of their own choosing for advice about a specific situation
or problem. For more information concerning employer obligations under USERRA
or state military leave laws, you may contact the following Jackson Lewis attorneys:
Michael Caples, in the Jackson Lewis San Francisco office, at (415) 394-9400;
Shawn Kee in the Stamford, Connecticut, office, (203) 961-0404; Robert Sneed
in the Greenville, South Carolina, office, (864) 232-7000, or the Jackson Lewis
attorney with whom you regularly work.
Opinions expressed in Expert Commentary articles are those of the author and are
not necessarily held by the author's employer or IRMI. Expert Commentary articles
and other IRMI Online content do not purport to provide legal, accounting, or other
professional advice or opinion. If such advice is needed, consult with your attorney,
accountant, or other qualified adviser.