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In light of recent national events, this paper discusses the important statutory rights and obligations that all employers need to understand as many military reservists are called to service across the country. FEDERAL LAW PROTECTS EMPLOYEES WHO ARE CALLED INTO MILITARY SERVICE The federal Uniformed Services Employment and Reemployment Rights Act (“USERRA”) provides a broad variety of important protections to employees who serve in the military (including reservists and National Guard members called to duty by the President). The law applies to all employment relationships and exempts only those employees who receive a less than honorable discharge. Employees are protected immediately upon hire. USERRA provides for three main types of protection. First, the statute prohibits discrimination or retaliation against individuals based on past, current, or future military obligations. Second, the law allows employees to take a leave of absence to serve in the uniformed services. Third, the law provides a qualified right to reinstatement upon return from service. PROTECTION AGAINST DISCRIMINATION USERRA prohibits discrimination against individuals based on past, current, or future military obligations or because they have applied to serve. This prohibition extends to hiring, promotion, reemployment, termination, and benefits. In addition, employers are prohibited from retaliating against any individual for filing a complaint of discrimination under USERRA, testifying, assisting or otherwise participating in an investigation or proceeding under USERRA, or exercising any other right provided by USERRA. This protection applies regardless of whether the employee in question ever actually engages in military service. LEAVES OF ABSENCE The statute also provides that employees who provide advance notice are entitled to a leave of absence to engage in active duty, active duty for training, initial active duty for training, inactive duty for training, full-time National Guard duty or to attend an examination to determine the employee’s fitness for the above types of duty. The required notice may be given either orally or in writing and may be provided by the employee’s military branch. Employers may ask for a copy of the employee’s military orders, but leave should not be conditioned upon receipt of military orders. The notice requirements are waived if military necessity prevents advance notice or if it is otherwise impossible or unreasonable. USERRA DOES NOT REQUIRE EMPLOYERS TO PAY EMPLOYEES ON MILITARY LEAVE Accrued paid time off may be applied to cover the leave upon the employee’s request, but an employer may not require that the employee use accrued paid time off. In addition, employers must continue company-sponsored health benefits for employees who take military leave of less than 31 days and who pay any employee share of the cost. Employees absent for 31 or more days may elect to continue their health benefits through COBRA. For employers exempt from COBRA (i.e., those with less than 20 employees), USERRA provides a similar 18-month benefit continuation period at full cost to the employee. REINSTATEMENT RIGHTS Upon return from a leave of absence, an employee who requests reinstatement under USERRA must be reinstated in a manner that is “reasonably prompt,” unless the employer can show the position previously held by the employee was of a brief, nonrecurrent kind or that the employer’s circumstances have changed such that reemployment of the individual is impossible or unreasonable. (a) Service of less than 31 days. An employee who takes a military leave of less than 31 days must be reinstated if the employee reports to work at the beginning of the first regularly scheduled workday that falls eight hours after the end of the calendar day on which the employee concluded his or her military service. For example, if an employee is discharged from military service on Wednesday at 6 p.m., the employer could require the employee to report to work at 8 a.m. the following morning. If, due to no fault of the employee, reporting to work under these terms would be unreasonable, the employee must report back to work as soon as possible. (b) Service of at least 31 days but less than 181 days. An employee absent for military service for at least 31 days but less than 181 days must submit an application for reemployment with the employer no later than 14 days after the completion of the period of military service. (c) Service of 181 days or more. Employees who serve for more than 181 days must submit an application for reemployment no later than 90 days after completing the military service. These timelines may be extended up to two years for any individual who is injured or whose disability or injury is aggravated while serving in the uniformed services. If an employee fails to report to work or to request reinstatement in accordance with the statutory requirements, the employee does not automatically forfeit reinstatement. Instead, the law provides that an employee who does not report to work in a timely manner should be subjected to the employer’s policies regarding unexcused absences. An employee who follows the appropriate procedure and qualifies for reinstatement will be reinstated as follows: if the employee’s period of service was less than 91 days, the individual should be reinstated to the position in which the person would have been employed if his or her employment had not been interrupted by the service, provided that the employee is qualified to perform the duties of that position. For an employee whose period of service lasts 91 days or more, the individual should be reinstated to the position in which the person would have been employed if his or her employment with the employer had not been interrupted by such service or to a position of like seniority, status, and pay, the duties of which the person is qualified to perform. A reinstated employee is entitled not only to the seniority rights and benefits determined by seniority that the employee enjoyed at the commencement of his or her service, but also the additional seniority, rights, and benefits that the employee would have acquired if the employee had remained continuously employed. Consequently, under the terms of any pension or retirement plan, the employee must be treated as if no break in service occurred and leave time must be counted as service time when determining vesting periods. The employee also is entitled to immediately resume benefit eligibility status without a waiting period. USERRA also provides that an employee on military leave is subject to the employer’s policies governing other types of leaves of absence. Therefore, vacation, holiday, paid time off, and sick time accrual during the military leave and other discretionary matters will be handled in accordance with the employer’s policies. USERRA IMPOSES A TEMPORARY “GOOD CAUSE” TERMINATION RIGHT ON RETURNING SERVICE MEMBERS Finally, employers should be aware that USERRA destroys the at-will status of employees who are reinstated after performing more than 30 days of military service. USERRA states that employees reinstated after performing more than 30 days but less than 181 days of service cannot be terminated except for cause during the first 180 days after reinstatement, and employees reinstated after performing at least 181 days of service cannot be terminated except for cause for one year after reinstatement. While USERRA applies to all employers, many states also provide statutory protection to individuals who serve in the military, including offering similar protections to National Guard members called to duty by the state’s governor. Alison Daugherty is an associate in the Labor & Employment Group of Stoel Rives’Portland, Ore. office. Her e-mail is [email protected]

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