Military Leave Rights: Obligations for Employers
Paul Siegel | December 1, 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.
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.
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