Do You Have Reservist Employees? Know Your Rights--and Theirs A rundown of the laws and rights to be aware of with Reserve and National Guard employees
By Devlin Smith
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The U.S. military has activated more than 111,000 Reserve andNational Guard troops to prepare for a possible war with Iraq. Areany of your employees waiting to be called up? Once activated, whatemployee rights must you honor in regard to compensation, benefitsand job security?
The Uniformed Services Employment and Reemployment Rights Act(USERRA) attempts to answer some of these questions by spelling outthe rights and responsibilities of both the employee and employerin regards to military service. Under USERRA, employees arerequired to give their employer timely notice when called to activeduty. "Employees who participate in the National Guard orReserve should provide their employers with as much advance noticeas possible," says Mary E. Pivec, an attorney with theWashington, DC, law firm of Greenberg Traurig LLP. "Failure to provide noticecould result in a denial of the protection of USERRA."
Employers, in turn, are obligated to make work available toreturning reservists and National Guard troops. "In general,provided the reservist gives timely notice of an intent to returnto active employment, the employer must reinstate the employeewithin a matter of days of application, if not the same day,"says Pivec.
Under federal law, employers have no obligation to continue topay wages during periods of active duty. Employees can opt to useaccrued paid personal vacation while on active duty, but employerscannot require vacation time to be used. Reservists are also stillentitled to health-care benefits, paying the normal employee costfor coverage for the first 30 days. "If the period of serviceis 31 days or more, a reservist is entitled to elect, at his or herexpense, to continue participation in the employer-provided healthinsurance program for his/her dependents for a period up to thefirst 18 months of military service," Pivec says.
While small businesses are subject to the same obligations aslarge employers under USERRA, undue hardship can be asserted as adefense by any employer in defense to a claim of violation of theUSERRA. Financial resources and the overall size of the businesscan 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.
