The Call to Duty:The Rights and Obligations of Employers under the Uniformed Services Employment and Reemployment Rights Act
The Call to Duty:
The Rights and Obligations of Employers under the Uniformed Services Employment and Reemployment Rights Act
Oregon Lodging Association’s "Lodging News"
November 2006
Over the past several years, many Oregonians and citizens from around the Country have enlisted in the military or have been called to active duty from the various branches of the armed services and National Guard. A few months after September 11, 2001, I wrote an article containing the information in this article discussing your rights and obligations as an employer for such individuals. Given the complexity of the law and importance of the issue, it is appropriate to review this issue again given the current military operations in Iraq and Afghanistan. The federal law governing this area is called the Uniformed Services Employment and Reemployment Rights Act. While the basic idea of the law is fairly straightforward, it is very important that you carefully follow its requirements which range from the obvious and expected, to the not-so-obvious and quite unexpected. This article will give you a very brief overview of this law highlighting some of the most fundamental parts of the surprisingly complex military leave law.
So let’s say that Janet, your front desk manager, is a member of the Oregon Army Reserve. Janet comes to you one day and says that she just received a phone call from the Army and has been called to active duty effective in 72 hours. Janet has no paperwork yet and you were not even aware that Janet served in the Army Reserve. This does not matter. The law is that Janet must give you "advance written or verbal notice" that she will be leaving her employment for active duty. In some instances, Janet would not even have to give any notice "if the giving of such notice is precluded by military necessity or, under all of the relevant circumstances, the giving of such notice is otherwise impossible or unreasonable." As you can see, Janet has a great deal of flexibility in this regard. In the event you think Janet is lying about military service, you can likely ask Janet for the name of her contact person in the Army to confirm what she is telling you. However, the law is unclear. As a practical matter, it is difficult to perceive of a situation where a Reservist, like Janet, would be going off on a mission of such secrecy that the Army could not even confirm that she has been called up.
Okay, so Janet goes off to serve in the military. Since you cannot run your lodging facility without a front desk manager, you hire someone to replace her. Two years go by with no word from Janet. Then, one day you receive a letter from Janet telling you that her tour of duty is finished and that she would like to return to work in two weeks. The law says that Janet’s service can last up to five years during which time, with some exceptions, she is entitled to get her job back as front desk manager with all benefits that she previously had. More specifically, the law states that if the person whose period of service in the uniformed services was for more than 90 days, you must place that person:
- in the position of employment in which the person would have been employed if the continuous employment of such person with the employer had not been interrupted by such service, or a position of like seniority, status and pay, the duties of which the person is qualified to perform; or
- in the position of employment in which the person was employed on the date of the commencement of the service in the uniformed services, or a position of like seniority, status and pay, the duties of which the person is qualified to perform, only if the person is not qualified to perform the duties of a position referred to in subparagraph 1. after reasonable efforts by the employer to qualify the person.
In short, this means that if Janet had served as the front desk manager for the past two years without going into the military, she is entitled to received the benefit of all pay increases, benefit increases and promotions as if she had never left. Therefore, if Janet was allowed two weeks paid vacation before she left employment, and had she stayed, Janet would have been entitled to a third week, she will be entitled to three weeks paid vacation per year upon her return.
The provisions regarding exactly what benefits Janet will be entitled to are some of the more complex provisions in this law and will need to be carefully reviewed by you and your attorney, health care provider, benefit plan manger, Certified Public Accountant, or other professional who advises you on such matters. In general, the law as it relates to benefits operates on the "escalator principle." Say that Janet was at the bottom of the "employment" escalator when she left her job. If she had continued working during the two years she was in the military, she would have ridden the escalator up to a certain level. When Janet returns to work, she is entitled to received benefits and wages as if she had never gotten off the escalator.
There are some exceptions to rule the rule about rehiring but they are fairly difficult to meet. If you can show that your "circumstances have so changed as to make such reemployment impossible or unreasonable," or if "such employment would impose an undue hardship" on you, then you will not have to rehire Janet. Unfortunately, it is unclear exactly what would entail an "undue hardship." It may be that you have laid off half of your employees for economic reasons and that you are now serving as the front desk manger in addition to your other management or ownership roles. In that case, you might be able to show undue hardship. However, if you have cut back 50% of the maid staff, but still have a person serving as front desk manager, this likely would not show undue hardship and Janet would likely be entitled to get her job back. Regardless of what circumstances you will be able to show, it is important to remember the purpose of this law which is not to penalize those persons who have chosen to serve their country. With that in mind, your burden of showing circumstances sufficient to not rehire Janet will be somewhat difficult.
Some other key aspects of this law include provisions prohibiting discrimination in hiring, promotion, or firing by an employer on the basis of a person’s military status; the requirement that, under most circumstances, a returning employee cannot be terminated from employment for one year without cause; and detailed requirements pertaining to an employee who was injured while serving time in the military. You should also note that the law applies not only those persons called to active duty while serving in the Reserve or National Guard, but to those persons who choose to voluntarily enlist in the military as well. Furthermore, the military leave law applies to all employers, large or small.
As always, the application of any law is highly dependent on the factual circumstances at issue. In the event you are faced with this issue, we recommend that you discuss your rights and duties as an employer with your attorney to make sure that you are in compliance with the law. While it may appear to be a simple matter, addressing the issue up front might save you the costs of defending yourself in a lawsuit down the road.