The U.S. military has activated more than 111,000 Reserve and National Guard troops to prepare for a possible war with Iraq. Are any of your employees waiting to be called up? Once activated, what employee rights must you honor in regard to compensation, benefits and job security?
The Uniformed Services Employment and Reemployment Rights Act (USERRA) attempts to answer some of these questions by spelling out the rights and responsibilities of both the employee and employer in regards to military service. Under USERRA, employees are required to give their employer timely notice when called to active duty. "Employees who participate in the National Guard or Reserve should provide their employers with as much advance notice as possible," says Mary E. Pivec, an attorney with the Washington, DC, law firm of Greenberg Traurig LLP. "Failure to provide notice could result in a denial of the protection of USERRA."
Employers, in turn, are obligated to make work available to returning reservists and National Guard troops. "In general, provided the reservist gives timely notice of an intent to return to active employment, the employer must reinstate the employee within a matter of days of application, if not the same day," says Pivec.
Under federal law, employers have no obligation to continue to pay wages during periods of active duty. Employees can opt to use accrued paid personal vacation while on active duty, but employers cannot require vacation time to be used. Reservists are also still entitled to health-care benefits, paying the normal employee cost for coverage for the first 30 days. "If the period of service is 31 days or more, a reservist is entitled to elect, at his or her expense, to continue participation in the employer-provided health insurance program for his/her dependents for a period up to the first 18 months of military service," Pivec says.
While small businesses are subject to the same obligations as large employers under USERRA, undue hardship can be asserted as a defense by any employer in defense to a claim of violation of the USERRA. Financial resources and the overall size of the business can be considered hardships in these cases, according to Pivec.
For more information about USERRA and what it means to you, visit www.dol.gov/vets.