5.22.06

1. What are the uniformed services?

USERRA defines the uniformed services as the Army, Navy, Marine Corps, Air Force, Coast Guard, and the commissioned corps of the Public Health Service. The Army National Guard and Air National Guard qualify when performing active duty for training, inactive duty training, or full-time National Guard duty. Finally, during a period of war or national emergency the President can designate any other category of persons to be a “uniformed service” for purposes of USERRA. 38 U.S.C. 4303(16). Law Reviews, 45, 46, 52.

2. What is “service in the uniformed services?

“The term ‘service in the uniformed services’ means the performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority and includes active duty, active duty for training, inactive duty training, full-time National Guard duty, a period for which a person is absent from a position of employment for the purpose of an examination to determine the fitness of the person for any such duty, and a period for which a person is absent from a position of employment for the purpose of performing funeral honors duty as authorized by section 12503 of title 10 or section 115 of title 32.” 38 U.S.C. 4303(13) (emphasis supplied). Law Reviews 45, 46, 50, 51.

3. Does USERRA apply to voluntary service?

Yes. Please see the highlighted language above. Law Review 30.

4. How much notice can I expect, prior to a period of service?

We (ESGR) recommend that reservists and National Guard members give as much advance notice as possible, but USERRA does not specify any minimum period of notice. Circumstances arise, especially in a mobilization scenario, when the individual has very little advance notice from military authorities. USERRA’s legislative history indicates that Congress intended that the lateness of the notice to the civilian employer should not defeat the right to reemployment, especially when the individual had little or no notice from the military. Law Review 5.

5. Is the reservist or National Guard member required to provide me a copy of his or her military orders, when he or she gives me notice of an upcoming period of service?

No. USERRA imposes no such requirement. We (ESGR) recommend that National Guard and Reserve personnel provide to their employers such documentation as is readily available. If you have any questions, you may call the member’s commanding officer. If the member will not provide you that information, please call us (ESGR) at 1-800-336-4590.

6. I have an employee who takes a lot of time off for military training and service. Now, she has asked for time off for a time that is particularly inconvenient for me. Am I permitted to veto her request for military leave?

No. 38 U.S.C. 4312(h). She is only required to give you notice, not to obtain your permission. You have no right to veto the timing, frequency, duration, etc. You are permitted to contact the Commanding Officer. It is Department of Defense (DOD) policy that the Commanding Officer should work with you to resolve conflicts of this kind. The Commanding Officer will accede to your reasonable request to reschedule military training, unless doing so would detract from unit readiness and mission accomplishment. Law Review 30.

If the timing of this training period presents a real problem for you, the Commanding Officer will try to adjust the schedule for you, but please understand that such rescheduling must be kept to a minimum. National Guard and Reserve units train together, and they must go to war together. The training periods are scheduled so that the unit can be trained together. If an individual unit member undergoes training at a different time, it is likely to be impossible to replicate the training that the rest of the unit received. As a result, the individual unit member may not be able to perform some critical task, resulting in additional casualties and endangering the accomplishment of the mission.

Under the “Total Force Policy,” our nation is more dependent than ever before upon the National Guard and Reserve for essential military readiness. The National Guard and Reserve make up almost half of the total pool of available military personnel.

7. Am I permitted to make the employee-reservist find a replacement for the time that he or she will be away from work performing service?

No. The employee is responsible for giving you advance notice, if possible, but not for rearranging his or her schedule or finding a replacement.

8. Am I permitted to make the employee use vacation for his or her military training or service?

No. If the employee wants to use vacation, he or she has the right to do so, but it is unlawful for you to make the employee use vacation. 38 U.S.C. 4316(d). Law Reviews 26, 58, 59.

9. Am I required to pay the employee for the period that he or she is away from work performing military training or service?

USERRA does not require an employer to pay an individual for time not worked due to service. Another Federal law (5 U.S.C. 6323) gives Federal civilian employees the right to 120 hours per fiscal year of paid military leave. Law Reviews 33, 71. About 40 states have similar laws for state and local government employees.

If an employee is exempt from the Fair Labor Standards Act (FLSA) overtime rules, you are not permitted to make a deduction for a part of a pay period missed because of temporary military leave. See 29 Code of Federal Regulations 541.118(4). This is an FLSA requirement, not a USERRA requirement.

10. Is the employee entitled to other benefits of employment while away from work performing service?

If and to the extent that you provide benefits to employees who have been furloughed (laid off) or to employees on some kind of non-military leave (jury leave, educational leave, etc.), you must provide similar benefits to employees who are away from work performing service in the uniformed services. 38 U.S.C. 4316(b). Law Reviews 41, 58.

An employee who is away from work performing service in the uniformed services is entitled to elect continued health plan coverage through the civilian job. If the period of service is less than 31 days, you are permitted to charge the employee only the employee share (if any) of the cost of the coverage. If the period of service is 31 days or more, you are permitted (but not required) to charge the employee up to 102% of the entire premium, including the part that the employer normally pays in the case of active employees. 38 U.S.C. 4317(a). Law Review 10.

11. After a period of military training or service, how quickly is the employee required to return to work?

That depends upon the duration of the period of service from which the employee is returning. If the period of service is less than 31 days, the employee is required to report for work “not later than the beginning of the first regularly scheduled work period on the first full calendar day following the completion of the period of service and the expiration of eight hours after a period allowing for the safe transportation of the person from the place of that service to the person’s residence.” 38 U.S.C. 4312(e)(1)(A)(i). If reporting at that time is impossible or unreasonable through no fault of such person (e.g., automobile accident on return trip), the employee is required to report for work as soon as possible thereafter. 38 U.S.C. 4312(e)(1)(A)(ii). Law Review 5.

If the period of service was 31-180 days, the employee is required to submit an application for reemployment within 14 days after the end of the period of service. 38 U.S.C. 4312(e)(1)(C). If the period of service was 181 days or more, the individual must submit the application for reemployment within 90 days. 38 U.S.C. 4312(e)(1)(D). These deadlines can be extended by up to two years if the individual is hospitalized or convalescing for a service-connected injury or illness. 38 U.S.C. 4312(e)(2)(A). Law Review 5.

12. If the employee is one day late in reporting for work or submitting an application for reemployment, does he or she lose the right to the job?

Not necessarily. “A person who fails to report or apply for employment or reemployment within the appropriate period specified in this subsection shall not automatically forfeit such person’s entitlement to the rights and benefits provided in subsection (a) but shall be subject to the conduct rules, established policy, and general practices of the employer pertaining to explanations and discipline with respect to absence from scheduled work.” 38 U.S.C. 4312(e)(3). If the employee was one day late in reporting back to work, and if your usual sanction for one day of unexcused absence is a two-week suspension without pay, the employee would be entitled to the job but would be subject to the two-week suspension.

13. What does it mean to “submit an application for reemployment?”

No particular form is required. The message is: “I used to work here. I left for service. Now, I am back from service, and I want my job back.” You must not treat the applicant for reemployment as if he or she were applying for a new job.

We (ESGR) recommend that returning employees make explicit written applications for reemployment, and we have included a sample application letter on our web site. Law Review 77. However, the application for reemployment can also be made orally, or even by implication. If a person you know to be a former employee shows up at your office with military discharge papers in hand, his or her failure to use “magic words” like “I apply for reemployment” does not defeat his or her right to the job.

14. How quickly am I required to put the returning employee back to work?

If the period of service was less than 31 days, and if the person shows up for work at 8 a.m. on the next workday, he or she must be put back on the payroll immediately. If the period of service was 31 days or more, you are required to act promptly upon the application for reemployment. This should be a matter of days, not weeks or months. Law Review 8, 77.

15. The manager of an important facility was called to active duty more than a year ago. I filled the position, and the new manager has worked out great. Reinstating the returning reservist would mean displacing one of the best managers I have ever had, and that would cause great disruption. Am I required to reinstate the returning reservist?

Yes. The right to reemployment is not contingent upon the existence of a vacancy. Sometimes it is necessary to displace another employee in order to reemploy the returning veteran. Congress recognized that this law imposes burdens on employers, and that sometimes those burdens can be severe. Congress decided that imposing such burdens on employers is justified by the national defense needs of our nation. Law Reviews 8, 77.

16. I propose to reinstate the returning reservist as the assistant manager of the department, and I will increase the assistant manager’s salary to equal that of the manager. Is that sufficient?

No. Even if the salary is the same, being the assistant manager is not of equal status to being the manager. See Ryan v. Rush-Presbyterian-St. Luke’s Medical Center, 15 F.3d 697 (7th Cir. 1994).

17. Other than status and prompt reinstatement, what are the other entitlements of the returning veteran?

The returning veteran is entitled to immediate reinstatement of his or her health plan coverage, through the job, including coverage for family members. There must be no waiting period and no exclusion of “pre-existing conditions” (except conditions that the U.S. Department of Veterans Affairs has determined to be service-connected. 38 U.S.C. 4317(b). Law Review 10.

You must treat the returning veteran, for seniority purposes, as if he or she had been continuously employed. Law Reviews 53, 59, 60. You are also required to make up missed employer contributions to the pension plan, as if he or she had been continuously employed. Law Reviews 4, 9,40,74,75,76.

18. At our company, employees (as well as the employer) contribute to the pension plan. Is the returning veteran required to contribute that which he or she would have contributed if continuously employed? Is there a deadline for making up missed contributions?

Yes to both questions. If the returning veteran wants to be treated as continuously employed during the period of service, he or she must make up the contributions he or she would have made if continuously employed. After reemployment, the veteran must make up the missed contributions within the period that amounts to three times the period of service, but not more than five years. 38 U.S.C. 4318(b)(2). Law Review 76.

19. Having a reservist or National Guard member on the payroll sounds like a big hassle. I don’t think that I will hire any more of them.

Discrimination in hiring is unlawful. It is also unlawful to fire someone for being in the National Guard or Reserve, or to discriminate with respect to promotions or other benefits of employment. 38 U.S.C. 4311. Law Reviews 11, 64.

We (ESGR) recognize that employing National Guard and Reserve personnel can pose challenges for civilian employers, but please remember that there are also advantages to employing these people. They know how to manage time, and they are focused on mission accomplishment. They learn how to take and give orders. They receive tens of thousands of dollars worth of training, often directly transferable to civilian job skills, at no cost to you, the employer. They are physically fit. They are regularly tested and are certifiably drug-free. On balance, employing National Guard and Reserve personnel is a big plus for the civilian employer, and for the nation. ESGR also stands ready to assist you in the management of your Guard and Reserve employees.

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