My Key Employee Has Reserve Duty. I Need Her to Work. What Can I Do?
September 1, 2014
Congratulations on having hired a member of the Reserve Component of the Armed Forces! The discipline, work ethic and skill sets that make her such a key employee for your business also make her important to her country, too.
However, if your employee has requested time off to attend a drill with her unit, or to attend annual training, initial active duty training, or any other event her unit commander is ordering her to attend, and you must grant her the time off - without penalizing her in any way.
It's not only the right thing to do: It's the law. The Uniformed Services Employment and Reemployment Rights Act of 1994 makes members of the Reserve component of the Armed Forces a protected class. You cannot discriminate against reservists in employment, promotion or disciplinary actions.
You cannot discriminate against them in any fashion on the basis of past membership in the armed services (veteran status), or retention in employment.
Furthermore, you must grant them promotion opportunities in line with every one else in the company. Under the "elevator principle," you must provide them with promotions, seniority benefits, status, pay and every other privilege your company provides as a function of seniority as if they had never left. You must grant all accrued seniority as if the service member had never been absent.
This is true even if the soldier, sailor, marine or airman is gone on federal orders - for a period of up to five years.
If the servicemember expects to be gone for more than 30 days, the service member may elect to keep his or her employer health plan intact for up to 24 months (recently extended from 18 months). As the employer, however, you do not have to continue to subsidize premiums for an employee who isn't there: You can require the employee to contribute up to 102 percent of the premium to keep the health plan in place.
If the employee is absent less than 31 days, you simply keep the health care plan in place as normal.
Pension and Retirement Benefits
The pension vesting schedule continues while the servicemember is on military leave exactly the same as if the employee never left. The employer must grant pension eligibility as if the service member had never left. For example, if a company normally grants a 20 year bonus or pension eligibility after 20 years of service, and an 18-year employee is gone for two years of military leave, that employee must be granted eligibility for all benefits, just as he or she would have received had the deployment or activation never occurred.
This is true for both defined benefit and defined contribution plans.
Generally, the law requires the employer to re-employ the servicemember upon request, when the servicemember returns from active duty. Additionally, the employee must grant the service member any and all seniority-based promotions that would have occurred had the employer never left. As the employer, you must provide the employee with any training or retraining necessary to qualify the returned servicemember. If the servicemember is now disabled, you as the employer must make any reasonable accommodations the servicemember needs in order to perform the job successfully. If this is not feasible because of the employee's service-related disability, than the employer must employ the servicemember in another job which is the "nearest approximation" to which the servicemember would otherwise be entitled, with full seniority benefits.
The employer should take care to ensure that managers do not create a hostile climate for members of the reserve component of the Armed Forces and Veterans. While historically, courts have rejected attempts to assert USERRA in harassment and workplace climate claims (similar in structure to sexual harassment claims asserting a hostile work environment), Congress unanimously passed an amendment to USERRA in 2011 that changed the language of the law to allow for these kinds of claims.
Under this amendment, aggrieved servicemembers now can file the same kinds of hostile work environment claims allowed for under Title VII of the Civil Rights Act of 1964.
Generally, the servicemember must request the leave in advance. The employer must grant the leave upon request, though the employer may require the servicemember to provide orders or some other documentation of the military leave.
There are times where military circumstances or a state of emergency precludes advance notice, however. In these circumstances, the law still protects the servicemember from adverse employment action.
Upon return from active duty, the employee must request re-employment in a timely manner. After weekend drills or similar 2 to 3-day events, the service member must report to his or her next regularly scheduled shift, allowing for travel time and a period of rest.
The Department of Labor requires employers to post this poster in a prominent and accessible place in the workplace.
Application to National Guard
While USERRA technically applies only to mobilizations on federal orders, including National Guard annual training periods, each state generally has a parallel state law that provides similar protections for members of the National Guard attending weekend drills and activities funded by the state, as opposed to the federal government.
Occasionally, unit commanders have some flexibility in scheduling a servicemember's time. With advanced planning and coordination, a servicemember can occasionally schedule an alternate drill date with the unit or work out an alternate annual training. This is the commander's decision, however, and not the servicemember's to make. Commanders will make the call according to the needs of the service. A unit commander is unlikely to authorize an alternate drill date for a key unit leader during a weekend involving an important training exercise scheduled a year in advance, for example.
Where conflicts between civilian employers and reserve component servicemembers arise, you may wish to contact an organization called Employer Support of the Guard and Reserve (www.esgr.org.) This organization exists to act as a resource and liaison for employers, commanders and servicemember/employees.
For more information about your rights and responsibilities under USERRA, contact the Department of Labor or vist this page.