10/ 22/ 2004
by Steve Strauss
We live in a world where wars in distant places are having profound effects here at home. When beloved family members are called up for military service, not only are the lives of the National Guard officer or Reservist and their family and friends changed, but so are the small businesses where those who are called up work.
Small-business owners usually run a fairly tight ship. They have a close relationship with the people they hire and work with, and there is little time or room for major disturbances. Yet having a key employee leave after being called up for military duty with the National Guard or Reserve is indeed a profound disturbance.
This is an issue more and more small businesses these days are being faced with. How do you handle it, and what are you required to do in this situation?
The relevant law is the Uniformed Services Employment and Reemployment Rights Act. It was enacted by Congress and signed into law by President Bill Clinton Oct. 13, 1994.
The purpose of the law is to "minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees and their communities, by providing for the prompt reemployment of such persons upon their completion of such service."
So the main function of law is to ensure that members of the armed forces, including part-time reservists, have the right to return to their civilian employment after their service is done. The law requires that they be reinstated with the seniority, status and rate of pay they would have obtained had they remained continuously employed by their civilian employer.
But there is more to the law than simply requiring that you reemploy a member of the armed services once he or she returns home. Other relevant portions of the law are these:
- You cannot discriminate in hiring, promotion and retention on the basis of present or future membership in the armed services.
- When the employee is called up, he or she does not need to "request permission" from the employer, but rather is simply required to give the employer written or verbal notice of their pending departure. If no notice is given, then the reemployment provisions in the law are null and void as to that employee.
- You cannot require an employee to use earned vacation time or sick leave for military leaves of absence.
- When you do have employees called up, there is a 5-year limit on the cumulative length of time they remain eligible for reemployment. If a service member gets a new job, there is a new 5-year limit.
- Following a period of service of 31-180 days, the employee must apply for reemployment within 14 days following his or her release. Following a period of service of 181 days or more, the employee must apply for reemployment within 90 days.
- You are required to retain the employee's health insurance (if they so request it) for 18 months after they leave. The employee must pay the full premium. In that sense, this provision is not unlike COBRA.
- You cannot consider the time that the employee is away serving his or her country a break in employment for pension benefit or retirement purposes.
These rules are the minimum. You certainly can do more if you so choose and the National Committee of Employer Support of the Guard and Reserve encourages you to do more.
In fact, ESGR has an awards program for employers whose policies and practices support their employees' participation in the National Guard and Reserve. The "Secretary of Defense Employer Support Freedom Award" was created in 1996 to recognize employers who provide outstanding support to their employees who serve in the National Guard and Reserve.
