Military leave Featured

8:00pm EDT September 21, 2006
Many United States service men and women do not serve in the Armed Forces 365 days a year. Rather, they are our teachers, our doctors and our industry workers.

Because they work to protect us, federal guidelines ensure that a member of the uniformed services is not put at a disadvantage due to military leave, says Mark Goldner, an associate in the Pittsburgh office of Jackson Lewis LLP.

Smart Business spoke with Goldner about the guidelines that protect people in the uniformed services and how employers can ensure they abide by such guidelines.

What employment guidelines do employers need to be aware of when dealing with members of the uniformed services?
The federal statute is known as the Uniformed Services Employment and Reemployment Rights Act (USERRA). Individual states may also have their own statutes that cover employees serving in the military.

USERRA prohibits discrimination and retaliation against employees who serve in the military. The protected service includes active and reserve duty, actual or potential service, whether the service is voluntary or involuntary. Employers cannot use military service as a factor in making employment decisions.

USERRA also provides reemployment rights to anyone who leaves a place of employment to participate in military service.

This statute also sets standards for treatment of employees who serve in the military. An employee on military leave must enjoy the same benefits given under the employer’s policies to employees on a similar leave, such as the accural of vacation time for an employee on an educational sabbatical.

They also must enjoy benefits based on seniority as if the employee had been continually employed.

What steps can employers take to avoid a violation of the guidelines?
Employers cannot make any employment decisions based on an employee’s service or potential service in the military. An employee can decide that one week a month they wish to serve in their Army Reserve unit, and an employer is required to honor that request.

An employer that understands its obligations under USERRA is less likely to violate the statute.

The U.S. Department of Labor (DOL) provides information on USERRA and employers’ obligations on its Web site. The U.S. Department of Defense has an organization called the Employers Support of the Guard and Reserve (ESGR) that assists employers in complying with their obligations under USERRA. Among the services offered by the ESGR is an ombudsman program in which volunteers assist employers and employees to resolve military leave issues.

What should an employer do, if accused of a violation?
Employers must remember that under the statute the employee has no obligation to accommodate an employer. An employee only has to give reasonable notice of military service to his or her employer and then the employer must abide.

Military units are required to work with employers to resolve problems due to an employee’s military service, and are often eager to assist the employer. Employers, therefore, should first attempt to resolve any dispute with the employee and the employee’s unit. For example, if the annual training for an employee is scheduled during your company’s busy time of the year, an employer is allowed to contact the Reserve unit to see if the employee is permitted to complete the training at another time. Ultimately, however, it is the unit’s and the employee’s decision as to when to complete the training.

Employees may file a charge with the DOL, alleging the employer violated USERRA. Although employers can respond to the DOL directly, it is often wise to obtain the assistance of legal counsel. If the DOL charge is not successfully resolved, litigation may follow and the DOL charge should be handled with potential litigation in mind. Employers should consider the advantages in using counsel who have military experience. A lawyer who is a Reservist will have a better understanding of military requirements and can more readily assess the merits of an employee’s USERRA claim.

How can an employer respond if an employee is not qualified for a job when he or she returns?
USERRA uses the ‘escalator principle’ to determine the job to which an employee must return after military leave. This states that an employee must return to the job that he or she would have if he or she had been continuously employed during his or her military leave.

If an employee is not qualified for the ‘escalator’ position on his or her return, the employer is obligated to take reasonable measures to train the employee to fill the position. If, after reasonable efforts and training, the employee is still unqualified, the employee may be given the job he or she had when he or she left for military leave.

MARK GOLDNER is an associate in the Pittsburgh office of Jackson Lewis LLP. He can be reached at (412) 232-0135 or goldnerm@jacksonlewis.com.