JAMES B. AVEY PHD

INFORMATION ALSO PROVIDED BY TRACY STOTT PYLES, ESQ.

LITTLER MEDELSON – COLUMBUS

THE NATIONAL EMPLOYMENT & LABOR LAW FIRM

The War at Home:Learning the Recent Changes

to Military Leave Laws

Introduction

This presentation will cover:1.An overview of the Uniformed Services

Employment and Reemployment Rights Act (USERRA)

2.Department of Labor’s (DOL) new regulations implementing USERRA; and

3.Practical tips on how to keep leave administration in compliance with new regulations

The War At Home

Deployment Around the Globe

At present there are approximately 1.8 million personnel on active military duty

Additional 860,000 personnel active in one of seven Reserve military components

Deployment Around the Globe cont.

National Guard and Reserve units make up 50% of ground forces in Iraq

6,000+ troops patrolling the Mexican border

Extended Service Requirements

Prior to 9/11, National Guard limited deployment to no more than 6 months overseas

Due to strains after 9/11, deployment time increased to 18 months

Due to additional strains after Iraq invasion, deployment time increased to current 24 months

Meet Doug

15 year employee of Big Box Electronics

Runs division located in Milwaukee, WI

40 years oldColonel in Army

National Guard

Meet Doug cont.

National Guard unit being deployed in 30 days

Will spend 2 months training in US

Will be deployed directly to Iraq for 16 months

Advised supervisor of deployment

Doesn’t have paperwork yet

Meet Charlie

Employed by Small Time Printing, a 20 employee operation in Memphis, TN

Started with Small Time 6 months ago

Member of collective bargaining unit

Works as 1 of only 2 printing press assistants

Other assistant employed by Small Times for only 4 months

Meet Charlie cont.

Not a member of an military reserve unit

Has decided to enlist in the Army for 2 years

Advised his supervisor of his enlistment

Required to report for active duty training in 10 days

The Uniformed Services

Employment and Reemployment

Rights Act

USERRA Basics

1. Applies to all private and public employers, regardless of size

2. No minimum length of employment required before eligible for military leave

3. Applies to all types of military leave4. Applies whether military leave taken on a

voluntary or involuntary basis5. Establishes a floor for military leave obligations

1. States may enact more stringent requirements but can’t establish less than what USERRA already requires

USERRA – Notice Requirements

Notice Period Employee required to provide advance notice of

military leave obligations USERRA doesn’t specify notice period Even short notice may still entitle employee to

USERRA benefits

USERRA – Notice Requirements cont.

Documentation Employee need not initially provide written orders Oral notice sufficient to impose duty on employer to

provide leave Employers ultimately entitled to receive copy of

written orders once issued

USERRA - Verification

Employer entitled to contact employee’s commanding officer to verify accuracy of written orders

Cannot deny leave because orders not issued yet

Doug’s and Charlie’s Leave Requests

Doug’s and Charlie’s requests for military leave comply with USERRA’s notice requirements Employees entitled to leave in almost all

circumstances, even if little notice is given

What Happens While Doug & Charlie Are On Military Leave

Leave is unpaidEmployees do not accrue benefits

Sick leave, PTO or Vacation Time

Employees entitled to maintain levels of PTO, sick leave or vacation time they had prior to military leave.

Employees cannot be forced to use accrued benefits while on military leave (but can voluntarily do so)

What Happens While Doug & Charlie Are On Military Leave cont.

Employees do not accrue payments to pension funds or 401k plans

Employees may be placed on COBRA like continuation coverage or ERISA-based benefit plans for up to 24 months (2 years)

New regulation – Employees can take time off prior to start of military service to put personal affairs in order

Employees can work in non-military positions without jeopardizing leave rights For example, employee deployed to military base within US

can seek a second job after hours

USERRA and Reinstatemen

t

Reinstatement Requirements for Employees

Two requirements for reinstatement

1.Employee must obtain discharge from military service that is anything other than dishonorable

2.Employees must contact former employer and seek reinstatement within prescribed time period

USERRA – Period for Seeking Reinstatement

Depends upon amount of military leave taken by employee Less than 31 days: employee must report back to work

no later than the beginning of the first full regularly scheduled work period on first full calendar day following completion of military service + 8 hours travel

More than 30 days but less than 180 days: employee must apply for reemployment within 14 days of the completion of military service

More than 180 days: employee must apply for reemployment within 90 days of the completion of military service

Doug’s and Charlie’s Time for Seeking Reinstatement

Sine both Doug and Charlie have been gone in excess of 180 days, they both have 90 days from the completion of military service to seek reinstatement

DOL New Reinstatement Regulations

An employee’s statements prior to military leave do not impact employer’s reinstatement obligations If Charlie commented

prior to leave that he intended to make a career of military service and not return to work, this would not relieve Small Time of its obligations to reinstate him.

DOL New Reinstatement Regulations

During the reemployment time period, he may seek out new employment with another employer If Doug were to seek

new employment within the 90-day reemployment period, Big Box Electronics may not deny him reinstatement for that reason

Reinstatement Obligations for Employers – “Promptly” Reemploy

Employer required to “promptly” reemploy the returning employees “Prompt reemployment” differs depending upon

length of service Usually within several weeks DOL Regulations recognize that “prompt”

reemployment may take longer for individuals on leave for several years

Reinstatement – Escalator Principle

Employer required to reinstate an employee to the position he would have attained with “reasonable certainty” but for military service Employer required to go beyond simply reinstating

employee to prior position Employer may be required to advance employee to

higher position

Proper point for determining reemployment is the position employee would have attained if continuously employed Not employee’s prior position

Application of Escalator Principle

Easy to apply in strict seniority situations (like Charlie’s, with a union seniority system)

Application to non-seniority system more difficult

Doug and the Escalator Principle

Manager of 1 of 5 divisions of Big Box Electronics

Reported directly to VP of OperationsDuring Doug’s military service, VP of

Operations retiredBig Box interviewed other 4 division

managers, along with 3 external candidates1 of 4 other division managers selected as

new VP of Operations

Doug and the Escalator Principle cont.

Question: Whether with reasonable certainty it can be said that Doug would have attained the VP of Operations position Employer to look at hiring decision Doug’s performance prior to leave Doug’s relationships with executives, overall

company experience Doug’s “candidacy” as compared to other

candidates

Application of Escalator Principle

Layoffs, reductions in force, business consolidations

Escalator can go down

Principle may cause employee to be laid-off or terminated as a result of business conditions

Doug and the Escalator Principle

Doug’s Milwaukee division consolidated with Dallas, Texas division

Question: What would have happened to Doug’s employment at that time:

Doug chosen to head up new division?Demoted?Terminated?

Escalator Principle - Documentation

Be aware of situations in which an employee on military leave may later assert entitlement to a position

Keep appropriate records of decision-making process used to fill open positions or to cut positions

Reemployment Considerations

Reemployment position includes seniority, status and rate of pay employee would have ordinarily attained based on job history Includes prospects for future earnings, i.e. merit pay

increase

Reemployment - Merit Pay Increases

Merit Pay1. To extent truly based on merit, an employer may not

need to provide this increase to employee returning from military service.

2. If merit more based upon seniority, employer may be obligated to provide increase

Reemployment – “Reasonable Efforts”

Employer must make “reasonable efforts” to help employee become qualified to perform duties of position at issue

“Reasonable Efforts” and Charlie

Charlie had seniority to attain position as printing press operator during military service

Small Time Printing required to offer Charlie printing press position and provide him with “reasonable efforts” to qualify him for the position

“Reasonable efforts” determined on position by position basis.

“Reasonable Efforts” and Charlie cont.

If Charlie doesn’t qualify for position despite “reasonable efforts,” Small Time must reemploy him into position he held prior to leave.

If Charlie not qualified to perform duties of prior position, Small Time must reemploy him in any position nearest to first escalator position and, then, to pre-service position.

Benefits Upon Return From Military Leave

Entitled to receive rate of pay and benefits would have received if remained continuously employed Look to what would have happened to employee if he

remained employed

Doug and Vacation Benefits

Doug entitled to 3 weeks vacation prior to military leave

During leave vacation would have increased to 4 weeks

Doug entitled to 4 weeks upon reinstatement

Benefits Upon Return From Military Leave – 401(k) & Defined Benefit Plans

Employer must make contributions to defined benefit plan or allow employee to make contributions to 401k plan over a period that equals 3 times the length of military leave

If employer makes matching 401k contributions, its obligation to make those contributions commences when employee reaches contribution level needed for matching

Termination – For “Cause”

USERRA protects employees returning form military leave beyond date of reinstatement Service exceeded more

than 30 days but less than 181 days, employee may not be discharged except for “cause” for a period of 180 days after reemployment.

Service exceeded more than 180 days, employee may not be discharged except for “cause” for 1 year after reemployment.

Termination – For “Cause” cont.

DOL Regulations Define for “Cause”:

Employer bears the burden of proving it is reasonable to have discharged for conduct, and that employee had notice that conduct would constitute cause for discharge

Termination – For “Cause” cont.

Other Legitimate Non-Discriminatory Reasons: Lay-offs and job

elimination constitute for “cause”

Employer still bears burden of proving employer’s job would have been eliminated or employee laid off, despite military service

Any Questions?