10/ 07/ 2004
by Charles McConnell
Today more than half of the men and women serving in the armed forces of the United States are members of the National Guard and Reserve. The part that the Guard and Reserve play in our national defense involves maintaining a high level of readiness equivalent to that of our standing military forces, such that a unit can be called up and deployed rapidly ready to function. The manner in which the Guard and Reserve are utilized today has enabled the country to reduce the size of the standing military while retaining the ability to quickly mobilize to meet a crisis anywhere in the world.
Members of the Guard and Reserve who stand ready to be called are working people holding down jobs and pursuing careers. It's likely that in recent years a significant percentage of businesses large and small have had some employees called to active duty in one essential capacity or another. In recognition of the disruption of working lives, provisions have been established governing certain aspects of civilian employment for the "citizen-soldiers" subject to activation. The governing legislation is the Uniformed Services Employment and Reemployment Rights Act.
Members of the Guard and Reserve experience interruption of their employment, and their employers face disruption of business activities as people are called to active duty often on short notice.
The follow questions include some of the most frequently asked by employers about employees' military service:
Does the USERRA apply just to members of the Guard and Reserve, those who are obligated for brief stretches of active duty each year and subject to mobilization in times of emergency?
No. USERRA regulations also apply to employees who join the military of their own volition.
Then the regulations apply to voluntary as well as involuntary service?
Correct. Someone may join the armed services as a full-time member or simply as a member of a National Guard or Reserve unit. Those who serve voluntarily are covered equally with those who are called involuntarily, as in having one's Guard or Reserve unit activated or being called by Selective Service.
How much notice can we expect before an employee has to report for active duty?
Plenty of notice is usually available for an individual having to report for an annual two-week training period or other such known commitment. But a problem often arises when an entire unit is called up to full-time service with little advance notice. Short notice to the employer can have no bearing on one's right to reemployment.
Speaking of reemployment, do we have to return the person to the same job?
Similar to laws protecting individuals out for certain other reasons, for example short-term disability, the USERRA calls for reemployment in one's original position or in a position that in every significant way -- duties, pay, benefits, authority, responsibility, etc. -- is similar to the original position. If the position is one of a kind, only return to this original position will suffice. The right to reemployment is not dependent on the existence of a vacancy; it's sometimes necessary to displace another employee to reemploy the returning veteran.
How long does the right of reemployment exist?
In most instances the right of reemployment extends for up to five years of either continuous service or cumulative periods of service.
Does the right to reemployment apply to someone whose military service was unsatisfactory?
No. One must have been released under satisfactory conditions, not having been released as unsuitable or having received an other-than-honorable separation.
What about seniority and benefits for the returning employee
For seniority purposes one must be treated as though employment were continuous. Concerning benefits, the returning individual must be considered fully benefits-eligible upon return.
Can we require an employee to use vacation time to cover military training or active service?
No. The employee can choose to use vacation but cannot be required to do so.
Are we required to pay the employee for time away on military service?
No. But for annual Guard and Reserve requirements, a number of employers make up the difference between an employee's military pay and regular earnings. Under law, Federal civilian employees have the right to 120 hours of paid military leave per year, and about 80 percent of states have similar laws affecting state employees. One precaution, however: for a salaried employee (exempt from the overtime provisions of the Fair Labor Standards Act), you're not allowed to make a deduction for a partial pay period missed because of temporary military leave, a requirement of FLSA, not USERRA.
