Military Leave and the Employer

Since September 11, 2001, we have seen a waive of patriotism unparalleled since World War II. Significantly, the U.S. has become embroiled in the war on terrorism and this war has overwhelming public support and involves significant numbers of military personnel. Some members of the reserve components of the armed forces and the National Guard have already been called to active duty and the prospect of being activated looms for other reservists as the war expands.

Employers should be aware that the Uniformed Services Employment and Re-employment Rights Act (USERRA) provides job protection for members of the uniformed services. Generally, the Act allows employees to take up to five years of leave for military service. Unlike some federal statutes regarding employers, this Act applies to all employers regardless of size and includes municipal employers.

USERRA prohibits discrimination against employees who are members of, or who apply for membership in, or who have service obligations to any U.S. uniformed service. This includes the Air Force, Army, Coast Guard, Navy, Marine Corps, Air and Army National Guard and reserve components of each. Neither may employers retaliate against employees who exercise rights under the USERRA.

Generally, if an employee is caused to be absent from work for "service in the uniformed services," the employer must provide an unpaid leave of absence. Upon return from a period of service, the employer must provide the employee who served less than ninety-one days with the same position or the position they would have attained had they been continuously employed, if qualified. Upon return from a period of service of ninety-one days or more, the employee must be returned to the same position or a position with equivalent seniority, status and pay. An employee returning to work may be discharged only for cause for a period of time based on the length of military service.

Additionally, the employer must provide the same benefits during the leave as it voluntarily provides for other persons on unpaid leaves of absence. For an extended period of leave, the employer should provide COBRA like notice and the right to continue insurance coverage. Although the law does not require that these leaves be paid, many employers do voluntarily provide some pay, such as the difference between regular and military pay during the employee's period of service.

The employee is required to give the employer advance written or oral notice of service obligations. In cases where military necessity makes notice impossible or unreasonable, the notice requirement is waived. Additionally, the employee must notify the employer of an intent to return to work within ninety days following release from a service obligation.

USERRA is enforced by the filing of a complaint by the aggrieved employee or the U.S. government in the U.S. District Court. Remedies include lost wages and benefits, reinstatement, and in the case of willful violations a doubling of damages as liquidated damages. The court may also award attorneys' fees, expert witness fees and other litigation expenses to a prevailing employee.