Military Leave

(links outside this site are not under control of HRLawyer.com) Over the next several years, U.S. anti-terrorist efforts may require that more military reservists be called to active duty. Employers who are affected should have a clear understanding of their duties under the federal Uniformed Services Employment and Reemployment Rights Act ("USERRA"), found at 38 US Code sections 4301 and following, as well as California law found at Military & Veterans Code sections 394 and 394.5. It's just part of the price we pay for freedom - this charge just happens to fall on employers of those men and women who serve our country in the Guard & Reserves.

California Law

Under the state provisions, it is a misdemeanor for an employer to fire, refuse to hire or otherwise discriminate against someone because of their membership in a state or federal military unit, or for obeying the call to duty or training. A reservist or National Guard member is entitled to up to 17 days of unpaid leave per year for training or reserve duty. Violators can be liable for damages and attorney fees as well.

Federal Law

The USERRA is broader. It prohibits discrimination against employees due to their service in uniform, whether past, present or future. Service includes not only the National Guard and reserves, but also the Coast Guard and the Public Health Service. More important, it protects the serviceperson’s job for up to five years while they’re on active duty. Employers must hold open the job of an employee who tells the employer they’re leaving to serve, completes their service honorably and applies for reemployment within a five year period.

An employee who is on active duty for less than 31 days must report to work on their first scheduled day after completing service – with an additional allowance for travel back home and eight hours of rest before that shift begins. That means if the employee is released from active duty on Monday at 9 a.m., and drives three hours to get home, he or she is not required to report to work until the next shift that begins after 8 p.m. that night.

An employee on active duty between 31 and 180 days, the employee must apply for reemployment within two weeks after completing service. Beyond 180 days, the employee has 90 days after completing service to apply for reemployment. There are exceptions for those who are injured while serving.

Job Protection

Not only is the employee entitled to be employed again, he or she is guaranteed the position they would have attained if not for the service they performed. That may mean some guesswork for the employer, but if an employee would have been expected to be promoted, for example, the employer has a duty to try to place the returning employee in that position, even if it means a special effort to train him or her to do the job. If promotion is not reasonable, then the employee is entitled to his or her old job.

Once the employee is back at work, his or her job may enjoy additional protections. If he or she has served 31 to 180 days, he or she can only be fired for cause for 180 days after they return. If they’ve served longer, they can’t be considered "at will" for a full year after returning - that is, they can only be terminated for cause during the year following their return to work.

Benefits Protection

While on leave, the reservist-employee is entitled to maintain their full employment benefits given to other employees on leave (including COBRA opportunities), and to continue to accrue seniority and pension vesting. The reservist-employee is also entitled to use vacation time if he or she wishes, but the employer cannot require that it be used. When the employee returns, he or she should immediately return to regular status – no waiting period for health or other benefits.

Employer Protection

As with other job protection statutes, there is an exception where the employer can show that its circumstances have changed, such that reemployment would be unreasonable or impossible, or would impose an undue hardship on the employer. Undue hardship is determined case by case, but takes into account the cost of complying with the law, the nature and size of the business, its financial condition, number of employees, type of operation, and its general ability to absorb the expense.

Temporary employees who leave for active duty can’t expect to return to an assignment that has already been completed in their absence. If the employer can show there was no reasonable expectation that the job would continue, there is no obligation to keep the job available. But as expected, the employer has the burden of proving that the exception applies.

As always, the rules are more complicated than we can cover thoroughly here, so if a specific situation arises, be sure to consult with your labor & employment counsel.