Employers Need to Know the Rules that Apply to Employees Going on Military Leave

As the United States engages in war with Iraq, employers should become familiar with the legal requirements related to military leaves of absence and reemployment. The Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”) provides job protection and reinstatement rights for employees who are absent from a position of employment because of military duty in the “uniformed services.” USERRA applies to all employees (except temporary employees) and all employers, no matter their size.

Under USERRA, it is unlawful for an employer to deny initial employment, reemployment, retention of employment, promotion or any benefit of employment to a person because of military service. USERRA also grants job return rights to reservists and members of the National Guard. The employee must meet certain eligibility criteria:

• the employee must have given advance notice to the employer that he or she was leaving the job for military service;

• the period of service must not exceed five years;

• the employee must have been released from service under honorable conditions;

• the person must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment.

There is a “changed circumstances” exception to reemployment, providing that an employer is not required to reemploy a veteran if reemployment would be impossible or unreasonable, or would impose an undue hardship on the employer.

USERRA also protects returning employees from discharge without cause. The duration of this protection varies with the length of the employee’s military service. If the retuning employee served over 180 days in the military, an employer cannot discharge that employee without cause for one year after the date of reemployment.

While an employee is on military leave, an employer must provide that employee with the same rights and benefits provided to employees on non-military leaves of absence, and the employer cannot treat military service as a break in the employee’s service. USERRA protects returning employees’ benefits, such as medical plans, revisions and seniority rights.

USERRA does not require employers to pay employees on military leave. While an employee may use accrued vacation while on leave, an employer cannot force the employee to do so. If an employee believes that his or her rights under the statute have been violated, USERRA provides that the employee may sue for damages and attorneys’ fees. The U.S. Department of Labor and the U.S. Attorney General also have enforcement authority.

It is important for employers to take into account USERRA’s protections before taking any employment actions involving employees on military leave or returning from active duty.

If you would like more information about the rules that apply to employees going on military leave or Kohrman Jackson & Krantz's labor and employment law practice, please contact Robert S. Gilmore at 216-736-7240 or rsg@kjk.com.