Employment Rights of National Guardsmen, Reservists and Veterans
© Bob E. Lype, 2001
With more and more National Guardsmen and reservists being called up for active duty, employers must be mindful of their obligations.
Following the tragic and terrible events of September 11, 2001, the United States has become a nation at war against terrorism. We have been told that this war will be extensive, lengthy, and costly.
Already we have seen a significant call-up of military reservists, as well as National Guardsmen. We can expect more and more men and women to be called into service, leaving their homes, their families, and their jobs to perform vital tasks in the defense of America, and in the fight against terrorists for freedom and security.
As an employer, you should be mindful of your obligations regarding these circumstances, as well as the rights of the employees called into service. This article will provide an overview and summary.
Federal law. Employers should first be aware of obligations imposed under a group of Federal statutes, collectively called the Uniformed Services Employment and Re-employment Rights Act (USERRA). These statutes have been held applicable to employers of all sizes. The primary obligations can be summarized as follows:
- Employees must be permitted to take time off work, up to five years, to perform their military service. At the end of the service, the employee must report for re-employment within a given time, depending upon the length of time missed.
- The employer may require documentation regarding such things as the length and character of the employee's service.
- For employees who have continuously served 90 days or less, the employer must rehire them into the same position the employee would have attained, if the employee had been continuously at work (unless the employee is not qualified for any advancement, in which case he or she must be rehired into the same position once held).
- For employees who have continuously served 91 days or more, the employer must rehire the employee, although he or she may be rehired into a position of pay, status and seniority comparable to that previously held.
- A returning employee must receive all seniority-based benefits they had, or would have received, and all non-seniority benefits established by contract or policies in place at the time the leave commenced.
- If the employee was gone for more than 180 days, you cannot terminate his or her employment, except for cause, within one year of the return. If the employee was gone for between 30 and 180 days, you cannot terminate his or her employment, except for cause, within six months of the return.
- An employer cannot require employees to use their accrued vacation, annual leave, or similar leave while performing active duty.
The statutes provide that an employer is not required to re-employ someone covered by these sections if the employer's circumstances have so changed as to make the re-employment impossible or unreasonable, or if re-employment would impose an undue hardship, under the circumstances. The burden of proving these excuses is upon the employer. Employers should be wary of making these arguments in borderline cases, because the courts have been liberal in applying USERRA to protect the employee's rights.
If an employer fails in these obligations, the employee may file an administrative charge, he or she may ask the Department of Justice to intervene, or he or she may file a lawsuit. The lawsuit may be filed in either state or Federal court. The court may award the employee reinstatement, lost pay and benefits, and, if the employer's actions are found to be willful, the amount of lost pay and benefits may be doubled as liquidated damages. In addition, the employee's attorneys' fees may be awarded.
Tennessee law. In addition to the USERRA, Tennessee employers should note that there are certain obligations imposed under Tennessee law. In particular, a Tennessee statute makes it a Class E felony for an employer to fire, or refuse to hire, someone for the "sole reason" that he or she is a member of the Tennessee national guard, or because of absence from work while attending required training. Another Tennessee statute grants paid military leave to full time and part time state and county employees who are scheduled for weekend work, when they are required to attend national guard drills.
Related Federal law. Although it does not directly affect the employment relationship, business owners should also be aware that the call-up of Guardsmen and reservists may also trigger certain protections contained in the Soldiers' and Sailors' Civil Relief Act, which is designed to minimize the financial impact of active military service to the men and women who serve, and to their families. The purpose of the Act is to suspend certain civil liabilities and obligations of servicemen and women, so they can devote their full attention to their national defense responsibilities.
The Act contains these primary protections: (1) collections actions and civil lawsuits against active service personnel are postponed until the service member is able to return and adequately protect his or her interests; (2) repossessions and foreclosures against active service personnel are prohibited, unless there is specific court permission; (3) a maximum interest rate of 6% is available with respect to all pre-service obligations (including home mortgages); (4) service members can terminate leases with 30 days' notice; (5) guaranteed life insurance premiums are available in order to continue coverage; (6) courts may not enter default judgments against service members, unless specific guidelines are followed; and (7) the time within which a service member may file suit or be sued is extended while he or she is in active duty.
In most cases, it is up to the service member to advise the court or the creditor of the circumstances and request these protections.
Conclusion. It goes without saying that the men and women who serve our country deserve our deepest gratitude and appreciation. They take great risks and make great sacrifices. Therefore, the law grants them various well-deserved protections.
Sometimes losing the services of an employee due to National Guard or military reserve duty can be a significant hardship to an employer, as well. In times such as these, everyone should be willing to sacrifice and endure certain hardships. If the circumstances are such that your business may be significantly harmed by these obligations, it is possible that some of the employment-related obligations may be excused. However, all employers should be mindful of these legal requirements in the days, weeks and months to come.