When your newly hired sales manager told you he was in the Army Reserve, you figured it meant giving him a little time off now and then. But the war on terrorism changed all that, and now your employee's unit has been deployed far away for who knows how long. What are your obligations?
Time to find out. "Most employers think of military leave as one weekend a month and two weeks over the summer," says Jason Branciforte, an attorney with Littler Mendelson in Washington, DC, who specializes in military leave issues. "They don't realize it might be years." After all, the last time U.S. reservists were called up was during the Gulf War, when many of today's small businesses didn't even exist.
The federal law that governs this issue, the Uniformed Services Employment and Reemployment Rights Act (USERRA), prohibits employers from discriminating on the basis of military service. That includes both voluntary and involuntary service, whether it's active duty, active duty for training, inactive duty, or absence from work for an examination to determine fitness for duty. In addition to Army, Navy, Air Force and Marines, the law covers service in the Coast Guard, the National Guard and the commissioned corps of the Public Health Service, plus any other category the president designates during a time of war or national emergency.
You can't refuse to hire people because they're in the service or refuse to promote them because they might be called up for duty. And you can't terminate people because their unit has been deployed, even if they've been gone three years.
Under USERRA, which applies to all U.S. employers, workers are entitled to military leave of up to five years. This is unpaid leave, but benefits such as health insurance and life insurance must continue if they're provided for employees on other forms of unpaid leave (such as the Family Medical Leave Act or disability). Branciforte notes that some employers elect to continue paying employees' salaries for a given number of months or to pay the difference between their salaries and military pay.