Editor’s Note: Mr. Still is a member of the Labor and Employment Section of Ward and Smith, P.A.

RALEIGH –
Hundreds of thousands of members of the National Guard and the Reserves have been called upon to perform military service since the attack on the World Trade Center on September 11, 2001. Many of these individuals were employed by private employers prior to being called into active duty. This article addresses an employer’s responsibilities to its employees serving in the National Guard or the Reserves.

The primary law related to these obligations, the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), was passed by Congress for the purpose of eliminating employment discrimination against members of these military groups. Thus, USERRA is designed to protect members of the National Guard and the Reserves by addressing their rights to be hired, reemployed, promoted, given benefits, or retained in a job while serving.

To Which Employers and Employees Does USERRA Apply?

Many federal discrimination laws apply only to employers with a certain number of employees. For example, Title VII, which prohibits employment discrimination on the basis of race and gender, applies only to employers with at least 15 employees. USERRA, on the other hand, applies basically to every employer in the United States, public or private, regardless of size. Thus, this law has a very broad reach, making it crucial for companies facing situations related to the employment of members of the National Guard and the Reserves to understand their obligations under it.

The class of employees that USERRA covers also is broad. It applies to members of the uniformed services, including members of the Reserves and members of the Army National Guard and the Air National Guard engaged in active duty for training, inactive duty training, or full-time National Guard duty. With regard to current employees, the law applies to both full-time and part-time employees. It applies equally to rank and file employees, executives, managers, and professionals. Further, the law applies not only to current employees, but also to applicants who seek to be employed by a business. In other words, an employer cannot refuse to hire someone purely on the basis of a person’s military commitment. Thus, USERRA has a broad reach, and every employer should consider whether it is complying with USERRA when making employment decisions related to members of these military groups.

What Employment Practices Does USERRA Prohibit Employers from Taking Against Employees in the National Guard and the Reserves?

USERRA prohibits an employer from refusing to hire, reemploy, promote, retain, or give benefits to employees in the National Guard and the Reserves. Further, employers cannot retaliate against an employee for asserting his or her rights under USERRA. For example, a member of the National Guard cannot be fired for taking military leave in order to complete required military training. An employer also cannot force an employee taking advantage of USERRA to use vacation time for military leave, to reschedule the military leave for a time more convenient to the business, or to find a replacement for the time he or she is out on military leave.

When Must an Employer Reemploy a Member of the National Guard or the Reserves after He or She Returns from Military Service?

USERRA allows employees in the National Guard or the Reserves who leave their employment due to military commitments to be reemployed if they meet four requirements:

● The employee must give the employer advance notice of the employee’s service. This notice can be effective even if it is informal, oral, or given very shortly in advance, although the Department of Defense strongly encourages employees to provide 30 days notice if possible.

● The employee must have five or less years of total service in the military during the time the employee works for the employer.

● The employee must return to work or apply for rehire in a timely manner after he or she returns from service.

● The employee must not be discharged from the military under less than honorable circumstances.

Several defenses do exist for employers who are unable to reemploy an employee returning from military service. For example, if the business has reduced its workforce during the time the employee was serving, it may not have to reemploy the employee if the employee likely would have been laid off during the reduction in workforce. That being said, an employer is not allowed to deny reemployment to an employee returning from military service merely because it has hired or promoted another employee to perform the returning employee’s job, even if the other employee must be terminated.

Another defense available to employers is that the rehiring of the military employee would cause the employer undue hardship. Undue hardship, however, is a vague concept that may be difficult for employers to prove. A third defense is that the job the employee left was finite in nature and has been completed, thus making it unreasonable for the employee to expect to be reemployed.

Finally, a business does not have to rehire an individual who receives a dishonorable discharge from the armed forces, an individual who failed to report to duty for over three months, or a person whose military service ended due to court-martial ordered confinement.

What Benefits Must an Employer Give to an Employee Under USERRA?

Employers are not obligated under USERRA to pay employees while they take military leave. However, under USERRA, an employee taking military leave essentially must be treated as if he or she is on a leave of absence, and, thus, the employer must give an employee taking military leave the same benefits, if any, that it gives to any civilian employee taking a leave of absence. For example, if the employer grants paid leaves of absence for reasons such as jury duty, bereavement, or honeymoons, it also must pay the employees taking military leave, subject to any general limitations on leaves of absence, such as a maximum time limit.

Finally, an employee on military leave has the option under USERRA to use his or her employer’s health insurance. If the employee’s leave lasts less than 31 days, the employer has to continue to pay the employer’s share under its plan. However, if the employee’s leave lasts 31 days or more, the employer has the option to charge the employee up to 102% of the premium, even if the employer normally would pay a portion of the premium.

Conclusion

Complying with the often complex requirements of USERRA can be difficult for employers. It may be necessary for an employer facing issues related to the employment, reemployment, leave, or benefits of members of the National Guard or the Reserves to seek legal counsel for advice. Given the broad reach of this law and the current military involvement of the United States, employers will need to be increasingly cognizant of their obligations and the issues arising under this legislation.

© 2007, Ward and Smith, P.A.

Ward and Smith, P.A. provides a multi-specialty approach to the representation of technology companies and their officers, directors, employees, and investors. Kyle R. Still practices in the Labor and Employment Section, where he represents employers in a broad range of employment law issues. Comments or questions may be sent to ks@wardandsmith.com.

This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.