The deepening and continuing conflict in Yugoslavia is now affecting the American workplace. President Clinton recently authorized the activation of over 33,000 military reserves, setting in motion what might eventually turn out to be the largest mobilization of reserve forces since the Persian Gulf War. What does this mean for employers? With the enactment in 1994 of the Uniform Services Employment and Reemployment Rights Act, the obligations of employers with regard to individuals called for active duty have been greatly expanded. Here are just a few of the highlights:
Federal Military Leave Law – All civilian employers, whether private or public and regardless the size, are covered under the Uniform Services Employment and Reemployment Rights Act of 1994.
State Military Leave Laws – All states have some facet of law regulating military service and/or leave. The law, in the State of Illinois, is the Service Mens Employment Tenure Act – 330 ILCS 60/1 et. seq. While most states have passed laws establishing employment rights for those serving in the military, USERRA supercedes state laws that limit or condition these rights at least at a level below what is provided in USERRA, and, in those instances where the state law provides greater rights, the state law controls.
Eligibility For Leave – Absences to perform any duty in the military service, whether voluntary or involuntary, are covered by the USERRA, including active duty as well as absences for training, weekend duty, summer camps, and fitness-for-duty examinations.
Notice Requirements – Employees are eligible to take military leave if they or an appropriate military officer gives advance written or oral notice to the employer of the involved employee’s military service. USERRA does not set a specific time for giving advance notice, but employees should make every effort to provide reasonable notice, depending on individual circumstances. No notice is required if doing so is impossible or unreasonable because of military necessity or other legitimate reasons. Written proof of the need to take military leave cannot be required by an employer. Only if the combined length of an employee’s prior military leave is more than five (5) years may future leaves be denied. Even if an employer thinks the timing, duration, frequency or nature of an involved employee’s military service is unreasonable, it cannot deny the employee leave from work.
Pay During Leaves – USERRA does not require pay during military leaves. However, if a company policy has established that companies will voluntarily pay reserves the difference between their regular wage and the military pay received for military service, then payment, in accordance with this policy, will be required and enforced. Particular attention should be paid to whether or not a company has implemented this type of policy for annual summer camp. It should be noted that regulations under the Federal Labor Standards Act prohibit salary reductions where absences are caused by temporary military service. However, these regulations also permit employers to offset any military pay received by an employee for the particular week against the salary due for that week.
Vacations – Employees on military leave have a right to use any vacation or similar leave with pay that they have accrued prior to military service, but the use of accrued vacation time or other time is at the employee’s option – an employer cannot require the use of this time while on military leave.
Benefits – Employees on military leave are entitled to participate in any and all rights and benefits not based on seniority that are available to employees having similar seniority, status or pay who are on non-military leaves of absence. Such rights and benefits might include year end bonuses, insurance coverage, accrual of sick or vacation days or any other benefits not based on length of employment that is available to other employees on leave of absence. Special provisions are in existence with regard to the continuation of health plans for individuals on military leave (Section 4317 of USERRA).
Replacements – Employers are free to fill vacancies left by employees on military leave. However, a returning service member is entitled to reemployment in the position he or she left regardless of whether another employee is occupying it. In essence, the returning servicemen must be placed in his or her prior position even if this results in "bumping" a current employee.
Reemployment – Employees who have taken military leave generally have the right to return to their civilian jobs without loss of seniority or benefits. Unfortunately, this law is extremely complicated in the application of these provisions, and special attention must be given to all of the intricacies of the law prior to making a decision of reemployment.
Hopefully, the conflict in Yugoslavia will end quickly both to insure the safety and health of the people of Yugoslavia and Kosovo and our service personnel. Regardless of when the conflict ends, all employers should take notice of their obligations with regard to employees called to active duty.
