Does Your Business Honor Employees Serving in Military?

(Originally published in The Business Journal) 

With the war in Iraq in its fifth year and the war in Afghanistan in its seventh year, more and more civilian employees are being called into active military duty.  This translates into more employers losing employees to the military and having to weave them back into the work force when they return home. 

Employers must be aware of their obligations to employees who have either voluntarily or involuntarily left their employment to serve in the military.

The obligations of employers and the rights of employees affected by military service are set forth in the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).  This Act was passed by Congress to protect the employee who serves his/her country and must leave his or her employment to do so. 

The Act is a federal law that applies to all employers, regardless of size, in both the public and private sectors.

Here are eight key points covered in the Act:

1. Training for returning employees

The employer must make reasonable efforts to help the employee become qualified to perform the duties of the position if the employee is not qualified for the reemployment position.

2. No loss of seniority or status

Following service of more than 90 days, the employee must be reemployed in either (a) the same position he or she would have attained if the employment had not been interrupted by military service; or (b) a position of like seniority, status and pay.

3. Insurance coverage

Employers who provide health care coverage must permit employees returning from military service to elect to continue coverage.

4. Exception for employers

There is only one instance in which an employer is not obligated to reemploy the employee after uniformed service.  This one exception arises when circumstances have changed to such a degree as to make reemployment impossible.

For example, if there was a reduction in force that would have included the service employee, then the employer is not required to reemploy that employee.

5. Exceptions for employees

here are circumstances that will prevent an employee from being protected by the Act and being given his or her position back.  Those include:

• Dishonorable discharge from uniformed service.
• Bad conduct discharge.
• Separation from uniformed service under “other than honorable conditions.”
• Sentence of a general court martial.
• Being declared AWOL for three months.

6. Starting the re-employment process

The employee must notify the employer about his or her return, and the time frame for that notification depends on the length of service:

• For length of service time is 30 days or less, notification must occur the next business day after release;
• For service between 30 and 180 days, the employee must notify the employer within 14 days;
• For service is greater than 180 days, the employee has 90 days.

Employees with multiple tours of service can retain their re-employment rights for a total of five years.

7. Leaving for military service

An employee is not required to ask for, or receive, the employer’s permission to leave to serve in the uniformed services.

However, it would be prudent for employers to not only post a USERRA notice so employees are aware of their rights prior to leaving, but also to discuss their rights with them in an exit interview.

8. “At will” employment

The Act also alters the status of “at-will” employees.  Employees who return to work after 30 days or more of service may only be terminated for “just cause” for one year after their return.

he actual language of the Act can be found in the United States Code, Chapter 43, Part III, Title 38.  The U.S. Department of Labor has issued regulations that interpret the code and address real-life situations on applying it. 

The regulations, which can be found at 20 CFR Part 1002.210, will guide employers through application of this important law.

Wilson can be reached at pwilson@hhmlaw.com or at (330) 392-1541.