The rights of reservists
- By Carl Peckinpaugh
- Oct 15, 2001
Most government contractors and agencies employ people who serve in the military reserves or National Guard. Typically, employers are proud to have these patriotic individuals on their staffs and work hard to accommodate their drill schedules. In 1940, Congress passed the Veterans' Reemployment Rights Act to provide clear guidance in this area.
In 1994, lawmakers passed the Uniformed Services Employment and Reemployment Rights Act, which substantially improved the law. Under USERRA, an employer may not discriminate against an employee called up to military service based on the employee's military connection. The act applies to both voluntary and involuntary service, but not to situations in which a National Guard unit is activated for disaster relief, riot control or a similar activity.
To claim protection under USERRA, the employee must give notice to his or her employer before leaving the job for any training or service, unless notice is precluded by military necessity. Also, the employee must report back to the employer in a timely manner.
Employees cannot be forced to use vacation or leave time while on military duty. And they can continue their health insurance coverage but may be required to pay the employer's cost share after 30 days.
Following military service, employees are entitled to prompt reinstatement by their employer, accrued seniority as though they had been continuously employed, training and other accommodations, and special protection against discharge for other than cause for the first six or 12 months back on the job, depending on the length of military service.
Returning workers ordinarily should get the jobs they would have held if they hadn't been called up for military service, or a job of similar seniority, status and pay. Also, the employer must make reasonable efforts to accommodate any disability that the employee may have incurred or aggravated during the call-up.
In any dispute under USERRA, the employee has the initial burden of showing that the employer's action was motivated at least in part by the military connection. But even if that is demonstrated, the employer is not liable if it can prove that the action would have been taken even in the absence of the employee's military connection.
There have been only a few cases in which an employer has been found to discriminate against an employee under USERRA. For example, in Hill v. Michelin North America Inc., a court found that an employer's decision to transfer a naval reservist to a job with a less regular schedule and longer workdays discriminated against the employee. However, the court also found that the employer was not liable under USERRA because it had properly fired the employee for timecard fraud.
The small number of reported cases in this area shows that the system is well understood and properly applied by business and government personnel departments, as well as affected employees. Given its importance, that's fortunate.
Peckinpaugh is corporate counsel for DynCorp in Reston, Va. This column represents his personal views.