As thousands of reservists are being called to military action in the Balkans and taking leave from their jobs, it’s a good time to brush up on the intricacies of the federal law that protects the rights of workers who serve in the armed forces. And a new federal court decision upholds the special benefits and reemployment rights that must be given to employees who miss work for military service. We’ll look at the decision and provide an overview of your legal obligations.
Worker Asks For Day Shift
The recent case involved Kenneth Allen, a night-shift postal worker. Allen asked to be transferred to a day shift, but no positions were available. He was later called to active duty for five months. During that time, the Postal Service created a new day-shift position and gave it to another employee.
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Duty To Bump Existing Employee?
When Allen returned to work, he argued that he was entitled to the job because he had more seniority than the person selected. The Postal Service conceded Allen was the most qualified, but said it had no obligation to inform him of the day-shift job or give him an opportunity to compete for it while he was on military leave. In other words, the Postal Service said it didn’t have to bump the existing employee to make room for Allen when he returned.
Entitled To Equal Treatment
Allen sued the Postal Service, claiming it violated the federal Uniformed Services Employment and Reemployment Rights Act (USERRA), and a federal Court of Appeal agreed. Under the law, workers on military leave are entitled to the same status and benefits they would have received had they not been on leave-including the chance to select more desirable work hours.
What’s Required
This ruling highlights the sometimes complex rules protecting workers who are absent because of military service. Here are the key points:
- Who’s covered. The law protects anyone in the uniformed services, including the Army, Navy, Air Force, Marine Corps, Coast Guard, Army National Guard, Air National Guard and commissioned corps of the Public Health Service. It applies to workers on active duty, on reserve duty or in training. With few exceptions, workers are covered as long as their total military absences don’t exceed five years. Employees who work for you for only a “brief, nonrecurring period” that is not expected to continue for a significant length of time are not usually covered.
- Continuation of benefits. Employees absent for military service for 30 or fewer days are entitled to continuation of their employer-sponsored healthcare coverage under the same terms as when they are working. Employees who serve longer than 30 days may elect to continue coverage at their own expense for 18 months in a manner similar to COBRA. Pension plan eligibility must continue as if there were no break in service. And as the Postal Service case demonstrates, you also may have to make available any promotions, employment benefits and opportunities to select work hours or location that became available while the person was on leave.
- Reemployment rights. You’re required to rehire workers who are absent for military service, but your exact obligations vary depending on how long the employee is on leave. When a worker misses fewer than 90 days, you must usually return the person to the same position or one that would have been attained if the employment hadn’t been interrupted. An employee away more than 90 days must be returned to the same job or one with equivalent pay, status and seniority-with additional training provided if necessary to enable the person to perform in the new position. You also need to make reasonable accommodations for workers who are disabled in military service, and they can extend their leave for two years, or in some cases more if necessary. Employees must inform you of their intent to return to work, although the amount of notice varies with the length of leave.
- Undue hardship for employer. You can refuse to rehire an employee if circumstances have changed and it’s now impossible or unreasonable to do so-for example, if the worker would have been laid off during the time they are away on military service. Retraining requirements can also be excused if they would pose an undue hardship.
- Protection against discharge. Workers who have taken military leave of at least 31 days cannot be discharged without cause for six months to one year after their reemployment date, depending on how long the employee was absent.
For More Information
Contact the Committee for Employer Support of the Guard and Reserve at (800) 336-4590; the Veterans Employment and Training Service (VETS) at (916) 654-8178.