When Johnny Comes Marching Home . . .Will He Have a Job?

Susan Sorrells Esq., SPHR
April 2, 2008 — 2,500 views  
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In May of this year, 6,500 former soldiers in the Individual Ready Reserve received notices ordering them to report to an Army installation because they were being pulled back into the active duty.1 As the United States military commitments in Afghanistan and Iraq continue to remain great, employers are faced with tough decisions concerning their employees with National Guard and reserve responsibilities. “An increasing number of U.S. soldiers deployed in Iraq have gray mustaches, bald heads, and noticeable paunches as more reservists and National Guard units are being sent to war.”2 The ratio of active-duty Army and other elements - Reserves, National Guard and IRR - is now about 50-50.3 Whether a police officer, trucker, nurse, or pharmaceutical distributor, these individuals leave their everyday jobs to serve the United States through military service. “Once a soldier, always a soldier,” said Paul East, a long-haul trucker from Florida.4

The obvious question: what happens when Johnny comes marching home from war? What is Johnny’s employer legally obligated to do for Johnny? The Uniformed Services Employment and Reemployment Rights Act of 1994 answers these questions. The Veterans Benefits Improvement Act of 20045 enacted on December 10, 2004 expands employers’ duties to these “part-time” soldiers.

USERRA

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) was signed into law on October 13, 1994.6 The purpose of USERRA is:
  1. to encourage noncareer service in the uniformed services by eliminating
    or minimizing the disadvantages to civilian careers and employment which
    can result from such service;
  2. 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; and
  3. to prohibit discrimination against persons because of their service in the uniformed services.7

Sounds like some pretty lofty goals, huh?! Although minimizing disruption to these military heroes’ lives and civilian careers are laudable aims, real-life problems make their attainment difficult.
Those admirable purposes are furthered by the USERRA’s primary provisions that:

  • prohibit discrimination against persons because of their service in the Armed Forces Reserve, the National Guard, or other uniformed services;8
  • prohibit an employer from denying any benefit of employment on the basis of an individual’s “membership, application for membership, performance of service, application for service, or obligation” for service in the uniformed services;9 and
  • protect the right of veterans, reservists, National Guard members, and certain other members of the uniformed services to reclaim their civilian employment after being absent due to military service or training.10
Employee Obligations

Must Johnny do anything to attain the benefits of USERRA? Yes! Military personnel must provide the employer notice of pending service11 and must serve under honorable conditions.12 Johnny must reapply in a timely manner; for example, if Johnny serves less than 31 days, he must be ready to return to work within the work period following travel and 8 hours’ rest.13 If Johnny serves at least 31 days but not more than 180 days, he must reapply within 14 days of release; if he serves for more than 180 days, the reapplication must be made within 90 days of release from service.14

Must Johnny submit a formal application to reapply? No. Johnny can verbally request re-employment. Would Johnny lose the right to return to work if he reports back to work a day late or submits his application for re-employment late? Maybe not—Johnny’s employer can consult its own policies and practices concerning absences from work and the resulting disciplinary action.

Employer Obligations

Does Johnny’s employer have any obligations under USERRA? Yes! Employers must release their employees for their covered military service and may not discriminate in promotions, retention, reemployment, or other benefits on the basis of the employee’s prior service, current obligations, or intent to join a uniformed service.15 The employer may not retaliate against Johnny if he seeks to enforce his rights under USERRA.

Johnny’s employer is not required to pay Johnny for his time away from work performing military service. However, Johnny may choose to continue health plan coverage. If the period of service is less than 31 days, the employer may charge Johnny only his share of the coverage cost. If Johnny serves for 31 days or more, the employer may charge Johnny up to 102% of the entire premium, including the part that the employer typically pays.16

Johnny’s employer must place Johnny where he would have been absent the military service leave.17 Johnny is entitled to a benefit or increase, if with a reasonable certainty, he would have qualified for it had he not taken the military service leave.

Veterans’ Benefits Improvement Act

The Veterans’ Benefits Improvement Act of 2004 (VBIA), signed by President Bush on December 10, 2004, modified employer obligations as well as complaint procedures under USERRA.

Health Insurance Coverage

Under USERRA, all employer-sponsored health care plans are required to provide COBRA-type coverage for up to 18 months after the employee's absence begins due to military service or for the period of uniformed service.18 If Johnny serves for at least 31 days, his employer may require him to pay both his share and the employer’s share of the health care premium. However, the Veterans' Benefits Improvement Act of 2004 modifies elections made on or after December 10, 2004. The VBIA extends the maximum period for which an employee may elect to continue employer-sponsored health insurance coverage to 24 months. The maximum period of coverage for Johnny is the lesser of 24 months beginning on the date the employee's absence began or the day after the date on which the employee failed to apply for, or return to, a position of employment. Johnny may still be required to pay a premium similar to COBRA (no more than 102 percent of the full premium under the plan). However, a person who performs military service for less than 31 days may not be required to pay more than the employee share for such coverage.

Employer Notice Requirements

The second change to USERRA is that effective March 10, 2005, all employers are required to post a new USERRA notice issued by the federal Department of Labor. The agency will give employers a 60-day grace period to have it posted where other notices for employees are customarily placed.

The informational USERRA poster required in every workplace is available at http://www.dol.gov/vets.

Complaints Under USERRA

What if Johnny wants to pursue a complaint concerning his USERRA rights against his employer? If Johnny is a federal employee, a different governmental entity will now receive and investigate his complaint. Effective Tuesday, February 8, 2005, the U.S. Office of Special Counsel (OSC) shall begin directly receiving and investigating certain federal sector USERRA claims.19 The VBIA established a demonstration project beginning on February 8, 2005, and ending on September 30, 2007. This project gives investigative authority to the U.S. Office of Special Counsel rather than the Department of Labor concerning federal sector USERRA claims brought by federal employees if:

  1. The employee’s social security number ends in an odd numbered digit (i.e., ends in 1, 3, 5, 7, or 9) or
  2. Regardless of social security number, the employee also alleges that the involved federal agency has engaged in a prohibited personnel practice, such as discrimination, coercion, or reprisal for whistleblowing.20
If Johnny is a federal employee with a social security number ending in an odd-numbered digit or if he is also alleging a prohibited personnel practice, he can pursue a possible USERRA violation by contacting the Office of Special Counsel. If Johnny works for a private employer, he can pursue an alleged USERRA violation by contacting the U.S. Department of Labor, Veterans Employment and Training Service (VETS) through its website at www.dol.gov/vets or by calling 1(866) 4-USA-DOL.

Conclusion
The Veterans’ Benefits Improvement Act requires employers to post an informational USERRA poster, extends the maximum period for which an employee may elect to continue employer-sponsored health insurance coverage to 24 months, and grants the Office of the Special Counsel the authority to investigate federal sector USERRA complaints. To minimize complaints by employees taking military leave, employers must understand and follow both USERRA and VBIA Hopefully, employers can sing, “When Johnny comes marching home again, hurrah, hurrah!”

Opinions given are the author’s own. This article is not intended to be, and is not a substitute for, legal advice. The author is a licensed attorney with the State Bar of Texas, and is not certified by the Texas Board of Legal Specialization.

_______________________________________

1 Vaughan, Chris Fort Worth Star-Telegram, Mar. 18, 2005
2 Mooney, Mark, New York Daily News, Feb.15, 2005
3 Id.
4 Id.
5 Public Law 108-454.
6 Department of Labor website
7 USERRA 38 U.S.C. Sec.4301 (a).
8 Id. at Sec. 4311.
9 Id.
10 Id.
11 Id. at Sec. 4312 (a)(1).
12 Id. at Sec. 4304.
13 Id. at Sec. 4312.
14 Id.
15 Id. at Sec. 4311.
16 Id. at Sec. 4317.
17 Id. at Sec. 4313.
18 Id. at Sec. 4317.
19 U.S. Office of Special Counsel website
20 Id.

About the author:
Susan Hance Sorrells is a Senior Consultant, with Employment Practices Services, a provider of services to assist employers in managing their employment practices risk. Prior to joining EPS, Susan practiced law for four years with the firm Kelly, Hart & Hallman in Fort Worth, Texas. She has a training background as an instructor in the legal assistant certification program at the University of Texas at Arlington and as an Adjunct Professor at Texas Wesleyan School of Law. Susan obtained her Bachelor of Science degree in International Trade from Texas Tech University, magna cum laude. Her law degree is from the Texas Tech University School of Law. Susan is based in the Dallas/Fort Worth area and can be contacted at [email protected].

Susan Sorrells Esq., SPHR

Employment Practices Solutions