The rules for the Uniformed Services Employment and Reemployment Rights Act have teeth and employers who fail to comply could be facing lawsuits and double damages if the violation is willful, according to two military leave experts who led a recent BLR audio conference.

During the audio conference, Paul Lannon and Jack Sholkoff of Holland & Knight walked listeners through the requirements of the new USERRA regulations, which took effect in January 2006, and offered tips on how to comply with the rules.

One of the first things an employer must do to comply is display a poster informing employees of their USERRA rights, they said.

Lannon had three additional tips for employers: have a written military leave policy, train managers on USERRA, and communicate with employees about the rules and the employer's policy.

Sholkoff also said communication is important, but he added that employers need to be patient when handling military leave and to "look before you leap."

Basic Training

Lannon and Sholkoff began the presentation by providing some background information on USERRA. They noted:

• The law applies to all employers, regardless of size.
• USERRA protects anyone in federal uniformed services, including full-time- and part-time workers on active duty, reserve duty, or in training.
• The act protects intermittent disaster response personnel.
• In general, the law permits an employee to take 5 years of leave for military service.

Sholkoff said that if possible, employees must provide employers with notice of intention to serve in the military. Employees can give employers an oral notice or written notice. He said that in certain circumstances, such as an emergency situation, employee would be excused from notice requirements. He added that when the employee gives notice, the workers' USERRA rights are triggered. Even an employee who says he has no intention of returning to the employer after the tour of duty still has the right to reemployment. The employee in this scenario could change his mind.

Sholkoff noted that the law has no requirement for employers to pay employees on military leave. However, USERRA prohibits employers from requiring an employee to use earned vacation for USERRA-covered leaves, but an employee may request to do so. In addition, under the Fair Labor Standards act, an employer cannot dock the pay of an exempt employee who performs any work in a week, he said.

Health Benefits

Lannon said employees absent for 30 or fewer days are entitled to employer-sponsored health coverage under the same terms as when they were working. Employees on military leave for more than 30 days are generally entitled to COBRA-like continuation that lasts up to 24 months of service. Employers can require employees to pay up to 102 percent of premiums for this coverage.

Reemployment Rights

Sholkoff called USERRA's reemployment rights a key benefit of the law for service members. He noted that reemployment rights operate on the escalator principle (that is, employers must return the workers to the level they would have occupied if they had never left for military service).

Employers must return workers who miss 90 or fewer days to the same position or one they would have occupied had they stayed with the employer continuously, he said.

Employers must return workers who miss 91 or more days to the position they would have occupied had they been continuously employed, or one with equivalent pay, status, and seniority.

He noted that there is no requirement for employers to reinstate a returning employee who would have been laid off anyway.

Employees who are on military leave for 30 or fewer days must report to the employer by the start of the first regularly scheduled workday following service. The employee is entitled to an eight-hour rest period plus travel time.

Employees on military leave for 31 to 180 days have 14 days to file an application for reemployment. The application can come in the form of a phone call or letter notifying the employer that the employee wants to return to work.

Special circumstance like a service-related injury or illness would require extension to the deadlines, he noted.

While employers can request documentation from employees who are on military leave for more than 31 days, USERRA prohibits the employer from delaying reinstatement while it waits for such documentation, he said.

The law requires "prompt" reemployment, which the Department of Labor said means within two weeks after the employee applies for reemployment. If an employer takes more than 2 weeks to reemploy the service member, the burden is on the employer to explain why there was a delay, he said.

Sholkoff cautioned employers that they should be careful before terminating someone who has taken military leave because it could come back to bite the employer.

Seniority

Lannon said that returning service members are entitled to seniority and accompanying benefits that would have accrued if they had remained continuously working. For non-seniority-based benefits, employers must treat returning service members at least as well as employees returning from other types of leaves, he said. He added that employers must count toward Family and Medical Leave Act eligibility the time the employee would have worked had the employee been employed continuously.

Protection from Discharge

Sholkoff said a "huge benefit" for returning service members is the protection against termination without cause. Employees on military leave for 31 to 180 days are protected from termination without cause for six months. Employees on leave for 181 days or more are protected from termination without cause for one year.

Purchase a CD copy of the Military Leave Audio Conference.