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Karen Sullivan knows in minute detail how her husband’s recent activation as a military reservist will affect his civilian job. Sullivan is certainly a concerned wife. But her extensive knowledge of military leaves of absence comes from being an employment lawyer, a group that is devoting a lot of attention to the subject these days. As legions of reservists march off from their offices to the battlefield, employment attorneys are scrambling to familiarize themselves with rarely used military leave statutes. Many are already grappling with how a call to duty affects everything from a reservist’s job title to their stock options — an issue of special concern in Silicon Valley. But many predict the brunt of the work will arise when the soldiers come home and attempt to re-enter the workforce. For now, most attorneys say the recent reserve mobilization hasn’t led to a surge in business, but it has meant a shift in priorities. “An area of law that we have not had to think about much recently is now on the front burner again,” explains Shawna Swanson, a partner in Fenwick & West’s San Francisco office, who says she has been fielding a couple of phone inquiries a week on the subject. “We’ve all had to dust off our military leave statutes and read through the requirements,” she adds. A week after the terrorist attacks in New York City and at the Pentagon, Fenwick updated its Web site with a list of frequently asked questions and answers regarding military leaves of absence. Other firms, like Gibson, Dunn & Crutcher, Littler Mendelson and Cooley Godward, have penned handbooks on the subject and mailed them out to clients. Cooley Godward, which is about to embark on a cross-country seminar tour for employers, has rejiggered the curriculum to address the issue of military leaves. According to Alison Morbey, a senior associate in Cooley’s San Francisco office, the firm scrapped a one-hour segment on general law developments, replacing it with a session titled “National Emergency: Responding to Employee Issues.” For employment lawyers in California, there are two statutes that apply to the recent mobilization: the Uniformed Services Employment and Reemployment Rights Act and the California Military and Veterans Code. The former is a federal statute that protects the employment rights of Americans who join the military reserves. The California Military and Veterans Code gives state residents a few extra rights not covered in USERRA. Signed into law by President Bill Clinton in 1994, USERRA is essentially an improved version of an antiquated statute called the Veterans Reemployment Rights Act, initially passed during World War II and last amended during the Vietnam War. When American troops returned from the Persian Gulf war, it became clear that the VRRA was sorely out of date. “Health and pension benefits weren’t dealt with in a law that was originally passed in 1940,” says Gordon Berg, of the Department of Labor’s Public Office for Veterans Employment and Training. Nor did the VRRA statute extend to employers of all sizes. While USERRA fixes all of this, the new statute isn’t without its own gray areas. “At the time it was passed,” explains Cooley’s Morbey, “it was fairly uncommon for employees to get stock options, and so there’s nothing particularly mentioned in it about that.” This is no small omission for firms like Cooley, Fenwick and Brobeck, Phleger & Harrison, which count many high-tech companies as clients. Whether stock options continue to vest while a person is on military leave is something a lot of people are calling about, says Fenwick’s Swanson. While the statute is silent on the issue, Swanson is going by whether the stock option grant provides for vesting during other types of leaves of absence. According to many attorneys, though, the real work won’t begin until after the conflict, when the reservists come home and attempt to re-enter the workforce. “The tendency is to ask questions when the issues arise,” says Sullivan, an associate at Wilson Sonsini Goodrich & Rosati. “That may be six or nine months from now.” Most employers are probably well informed enough not to commit any blatant transgressions, such as barring a reservist from returning to work. But there’s still plenty of room for disputes. Returning reservists, for instance, go from being so-called at-will employees to for-cause employees, meaning they can only be terminated for doing something wrong. “I think that’s a part of the act that a lot of the employers are not familiar with,” says Fenwick’s Swanson. Another tricky part is the so-called escalator provision, which states that an employee is entitled to the job they would have attained had they not taken a leave. In a traditional workplace with well-defined career advancement tracks, this is straightforward enough. “But with Silicon Valley clients, that doesn’t always occur,” contends Cooley’s Morbey. “There are not always clear lines of progression.” Moreover, with today’s volatile economy, it’s difficult for employers to predict what their businesses will look like nine, or even 24, months down the road, when reservists could be coming home. A company that does things a certain way today could have a significantly different business model and needs a year from now. The upshot, of course, could be a flurry of litigation. And most attorneys believe this is a distinct possibility. But a great many cases, say employment lawyers, can be resolved by simply educating the employer. “Initially it’s going to be counseling,” believes Cooley’s Morbey, “in terms of advising clients as to what their obligations are.”

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