Business owners join workers in mobilizing for war
call-up of thousands of National Guard members and reservists has
forced America's businesses to also mobilize as they confront the
immediate workplace effects of losing personnel to military duty.
While large firms usually have
the resources to handle the staff loss, smaller firms have less
maneuverability. Small-business owners, however, are given no leeway.
All companies, large and small, must follow the same employment
rules when the military calls workers away from their civilian jobs.
Those rules are detailed in the
Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA), the law that governs military leaves of absence and re-employment
of eligible workers when they return from mandated military service.
Since USERRA grants significant rights to workers, employment law
specialist Joy Waltemath's first piece of advice to companies is
to be very careful.
"Employers need to know the law," says Waltemath,
a legal analyst with CCH, Incorporated, a national provider of human
resources and employment law information. "It's a statutorily
mandated leave of absence. All size companies are covered and they
need to pay attention to the requirements."
Familiar law, new circumstances
This probably is not the first contact with USERRA for many companies.
Probably most had already followed its guidelines when workers fulfilled
routine National Guard and Reserve duties. Many of these same workers
also may have left jobs to serve during the Gulf War.
But two things have changed since the terrorist attack,
notes Waltemath. There is the likelihood for much less call-up notice,
she says, and the length of service for employees could be much
As companies prepare for potential war-related employee
absences, here are some of the most common employer concerns regulated
must give employers advance notice of the call to active duty.
The notification also may come from one of the services uniformed
officers. Regardless, the notice doesn't have to be written and
there is no strict definition of "timely notification"
under USERRA. "If a worker is activated tonight and has to
leave tomorrow," says Waltemath, "all they're going
to get is a phone call."
Length of leave:
Once notified, employers must place a worker on a military leave
of absence or other appropriate type of leave for uniformed service
duty. This job-protected leave can be as long as five years, which
is a cumulative total of military service while with a single
civilian employer. "If you've been with one employer for
20 years and took one year to serve in the Gulf War, you have
only four years [protected by USERRA] left," says Waltemath.
Pay during military leave:
Employers are not required to pay workers who are serving
in the military. In non-combat times, some companies do pay reservists
the difference between their regular wages and the military compensation
received during routine training. Employers also should check
with state labor departments, as all have military leave laws
and some may include additional pay requirements for employees
during active duty.
USERRA allows employees on military leave to use any vacation
or similar leave with pay that they accrued prior to being activated.
But that decision is solely the employee's choice, notes Waltemath.
Employers cannot require workers to use vacation time toward military
If your firm provides health care to workers, then National Guard
and Reservists who are called up must be allowed to purchase COBRA-like
health benefits while they are in the service. COBRA, the 1986
Consolidated Omnibus Budget Reconciliation Act, requires companies
to allow former employees and their dependents to pay for continued
insurance coverage for up to 18 months. Companies with fewer than
20 employees are exempt from COBRA, but Waltemath points out that
USERRA overrides this exception. Even very small companies must
offer health care continuation options for Reservists or National
Guard members called to active service. If your firm does not
provide any employee health care benefits, you are under no obligation
to provide them for uniformed service absences.
USERRA requires that returning service members must be treated
as if they had been continuously employed for pension purposes,
regardless of the type of pension plan. This applies to vesting
as well as the benefit computation method. And a returning employee
must be allowed to contribute to the company pension plan any
amount that would have been contributed if he or she had not been
called to military duty. If the company's matching portion is
contingent on the employee's contribution, then the employee must
make his or her contribution before the employer is obligated
to make a contribution.
Replacement employees: You
may legally fill vacancies left by employees on military leave.
But, says Waltemath, under USERRA you may have to bump the replacement
staff when reservists come back to work.
completion of military service, USERRA generally requires a firm
to "promptly" rehire workers who make "timely application"
for their previous jobs. The reinstatement must be without any
loss of seniority or benefits. What constitutes prompt rehiring
depends on individual circumstances. For example, a worker returning
after three years of service might not be at his former job until
the person currently holding it is given reasonable notice of
And, notes Waltemath, USERRA does provide a safe harbor
for employers when it comes to rehiring former workers. "Re-employment
rights exist as long as there was not significant change in the
employer's status," she says. Significant change includes:
- Changed circumstances in
the business. In this case, rehiring the person would be
impossible or unreasonable, such as when a reduction-in-force
would have included the individual regardless of military duty.
- Undue hardship on the business.
Employers are excused from rehiring returning service members,
or from accommodating those who sustained disabilities during
service, when the difficulty or expense would cause "undue
hardship." This exemption is essentially the same as under
the Americans with Disabilities Act.
- The job was brief and nonrecurring.
USERRA says re-employment is not required if the vacated
position was one created for a brief and nonrecurrent period.
This includes jobs that could not reasonably be expected to continue
indefinitely, regardless of the military service.
In each of these cases, the employer has the burden
of proving, not simply asserting, that the company would suffer
if the returning service person is rehired.
The U.S. Department of Labor, through the Veterans'
Employment and Training Service (VETS), administers USERRA. The
Department has a special
Web site that provides time-frame specifics and interactive
questions regarding the rehiring of military service workers.
-- Posted: Sept. 20, 2001