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PUBLISHED IN CPAMERICA'S CLIENT FRIEND NEWSLETTER, WINTER 2005

In August 2004 more than 150,000 National Guard and Reserve personnel were mobilized to support the war effort. More than 3,000 others were called up to cope with the effects of Hurricane Charley. Laws exist to preserve these soldiers' jobs while they protect and aid our country and communities. Here is an overview of major provisions employers should know about.

Federal law. Your responsibilities to service members called to duty under federal authority fall under the Uniformed Services Employment and Reemployment Rights Act (USERRA). The law covers absences from work for weekend drills and annual two-week training sessions, as well as for extended periods of active duty such as service in Iraq.

The law applies to all employers, no matter how large your company is or how many employees you have. Even part-time and probationary employees are protected under USERRA. The only employees not covered are temporary employees, such as seasonal workers or those under contract for a specified time.

Reemployment requirement. You cannot fire National Guard members for fulfilling their military duties, and you must reinstate them promptly once their military obligation is complete. The job you put them in depends on how long they were gone. In general, when a soldier has been on military leave for 90 days or less, you must give them the job they would have held had they never left. For longer leaves, you must give them either the job they would have held had they had never left or one of equal seniority and pay. Adequate training must be provided to get them up to speed.

Note also that you cannot discriminate against Guard members when considering new hires or promotions.

Benefits. When service personnel request to use their accrued vacation time instead of unpaid leave for military duty, you must grant their wishes. However, you cannot force them to use their vacation time.

Soldiers have the right to retain their health benefits. If their health plan coverage would have ended because of their absence, they may choose to keep their coverage for up to 18 months. When they return to work, you cannot require a waiting period or exclusion for reinstatement of health coverage.

For employee rights and benefits based on seniority, including pension or retirement plans, you must treat returning service members as never having left. For rights that are not based on seniority, you must treat service members as if they were on a leave of absence. You must give soldiers all rights and benefits they had when they left, plus those that went into effect while they were gone.

Penalties for breaking the law. Soldiers can file complaints against their employers for violating USERRA with the U.S. Department of Labor's Veterans Employment and Training Service (VETS). VETS attempts to resolve complaints amicably. During the first ten months of the current fiscal year, 469 National Guard personnel filed complaints with this agency.

 Soldiers have the option of filing complaints with private courts instead of VETS. Employers found guilty of breaking the law must award Guard members back pay and lost benefits. Awards can be doubled if employers knowingly or recklessly disregard the law. Courts can also require employers to pay service members' legal fees.

Exceptions to the rules. An employer is excused from rehiring employees who have been on military activation when:

§                     the company's situation has changed so much that reemployment would be unreasonable, as when a downsizing that would have included the service member has occurred.

§                     the soldier has acquired a disability that would cause the employer undue hardship to accommodate.

§                     the service member has been dishonorably discharged from service.

State laws. USERRA applies to National Guard duty under federal authority. Each state has its own set of laws that apply when its governor calls Guard members to state military service. Responses to Florida's recent hurricanes fall under this category.

Most states have laws similar to USERRA but some are even more stringent. In Tennessee, for example, it is a felony for an employer to fire a Guard member for missing work because of drills or field training, and a guilty employer could be sentenced to a prison term and fines.

A word of warning. What is discussed here is merely a general overview of employers' responsibilities to National Guard members. Consult with your professional advisors to ensure that your policies and practices conform to all relevant laws.

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