Job Rights of Employees called up to Active Duty in pending Gulf War

Here we go again: in 1991 there was “The Gulf War” and now, or so it seems likely, in 2003 there will be the “Gulf War 2”. While the war scenario may be familiar, the same cannot be said for the legal relationship between employers and their reservist employees called up to active duty in the war.

Since the last Gulf War against Iraq, something has changed for our employers. All employers in the United States of America are governed by the Uniformed Services Employment and Re-employment Rights Act (“USERRA”)(38 U.S.C. Sections 4301-4333) which was enacted in 1994.

Some employers may view this law as a hardship on the employer. However, these men and women, regardless of the war or military action in which they serve our country, endure the real hardships including risk of injury or death. And they do so without reservation in order to protect our country, our people, our Western concepts of Democracy and Freedom of Speech, of Religion and even of Political Protest, our economic system (that allows millions of businesses to start from scratch, to grow and to thrive), and despite false claims to the contrary, oppressed peoples of other lands.

Who does it govern? All employers including any person, institution, organization or businesses regardless of size and all federal or state governmental agencies.

Who does it protect? Any employee who is absent from employment to serve in any of the uniformed services, on a voluntary or involuntary basis, for active duty, active duty for training or initial basic training, inactive duty training, full-time National Guard duty, for an examination to determine the fitness of the person to perform any such duty or for performing funeral honors duty.

The term ''uniformed services'' means the Armed Forces (Air Force, Army, Coast Guard, Marines, Navy), the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty, the commissioned corps of the Public Health Service, and any other category of persons designated by the President in time of war or national emergency.

So if your easily replaceable mail room clerk was called up for active duty this year to serve in the Gulf, he’s protected by USERRA.

What Protections Exists?

• Reemployment. Upon completion of military service, the reservist returning from active duty in a 2003 War against Iraq shall be promptly reemployed in his or her original job. If the reservist would have been entitled to advancement had he not been called up to active service (a salary increase based upon a seniority system, for example), then the returning soldier is entitled to the same job plus the advancement. Remember to advise your replacement worker that he or she is a temporary worker who may be terminated if the reservist employee on active duty requests reemployment after deployment. A soldier employee who is hospitalized for, or recovering from, a service-related illness or injury is given additional time to request reemployment. The law also requires the employer to reemploy and to make reasonable efforts to accommodate any soldier employee suffering from a service-related disability.
• Job Security. A soldier reemployed under USERRA whose active duty deployment was for more than 30 days, but less than 180 days may not be terminated after reemployment except for cause during the first 180 days of reemployment. A soldier reemployed under USERRA whose active duty deployment was for more than 180 days may not be terminated after reemployment except for cause during the first one year of reemployment. In other words, he ceases to be an at-will employee during these periods of the reemployment.
• Anti-discrimination. USERRA prohibits any discrimination against a reservist employee called up to active duty. The burden of proof is on the employer. If the employee’s military service is a motivating factor in the employer’s action, the action will be deemed discrimination in violation of USERRA, unless the employer can prove that the action would have been taken in the absence of the employee’s military service activity.
• Health Insurance. A soldier employee is entitled to continued coverage under the company health insurance plan. If the deployment is for more than 30 days, the soldier employee may be required to pay the premium under the plan. A soldier reemployed under USERRA whose continued coverage lapsed is entitled to immediate health insurance reinstatement without any waiting period.
• Vacation and other Benefits. Upon the soldier employee’s request, he may, solely at his discretion, use paid vacation for active duty time away from the civilian job. He is entitled to the same other benefits granted to employees on furlough of leave of absence.
• Pensions. A soldier reemployed under USERRA is treated for pension plan purposes as never having had a break in employment service during the active duty time period. If the pension plan required employee contributions, the soldier employee has an extended period of time in which to make the contributions.

What Exceptions Apply to Reemployment? The employer is not obligated to provide reemployment under USERRA if:

• the employer’s circumstances have so changed as to make such reemployment impossible or unreasonable; or
• the reemployment would impose an undue hardship on the employer; or
• if prior to being called to active duty, the reservist’s employment was for a brief, non-recurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.

However, the employer has the burden of proving the impossibility or unreasonableness, undue hardship, or the brief or non-recurrent nature of the employment without a reasonable expectation of continuing indefinitely or for a significant period.

What Damages are Recoverable? A soldier employee may file suit in federal court and receive assistance from both the United States Attorney General and the United States Department of Labor. Remedies may include

• injunctive relief;
• reinstatement of employment;
• back wages and other benefits;
• a liquidated penalty equal to the back wages and benefits award, and
• attorneys’ fees.

Caveat: The law is filled with variations based on different periods of service, so it is very important that HR departments gain familiarity with these provisions and the flexible notice requirements of the code. You can view the text of the statute at the following URL: http://uscode.house.gov/DOWNLOAD/38C43.DOC.

State Laws. Check with local counsel to determine whether a state statute provides additional protections and remedies for employees called up to active duty military service.