Question:

I am a small business owner that only employs five employees, one of whom is a military Reservist that has worked for me less than a month. What are my legal obligations, if any, in relation to this Reservist if she performs military service?

Answer:

Federal and state laws afford broad protection for employees that perform military duty. These laws apply to all employers regardless of size and regardless of how long the employee has worked for you. Therefore, even your small business has legal obligations as specified below in relation to this Reservist, and this is true even though the military Reservist has worked for you for less than a month.

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), 38 U.S.C. Sections 4301-4334, is the federal law that was enacted by Congress to establish certain rights and benefits for employees who undertake military service, and duties for employers. The California Military and Veterans Code Section 389 et. seq. is the state law that affords similar protections for employees that perform military duty.

While not exhaustive, the following are some protections under USERRA afforded to employees:

  • An employer is required to provide an employee a cumulative total of up to five years of military leave, unless certain limited exceptions apply. This period starts anew with each new employer.
  • Following military leave, an employee is entitled to be reemployed as long as: 1) the cumulative amount of military leave does not exceed five years, 2) the employee provided proper advance notice to the employer as specified below, 3) the employee has timely reported back to work or submitted a reemployment application within the statutory time frame, which varies based upon the length of the employee’s military duty, and 4) the employee has not been separated from military service with a disqualifying discharge or under other than honorable conditions.
  • An employee must provide proper advance notice to their employer of the need for military leave, unless advance notice is precluded by military necessity, or is otherwise impossible or unreasonable under the circumstances. The regulations require an employee to provide notice as far in advance as is reasonable under the circumstances. The Department of Defense regulations strongly recommend advance notice be provided at least 30 days prior to departure for military service when it is feasible to do so.
  • With certain limited exceptions, the employee is entitled to be promptly reemployed following military leave in the position he or she would have attained (i.e. promotion) but for the employee’s military service. Reemployment shall occur within two weeks of the employee’s application for reemployment.
  • An employee taking military leave retains their original seniority date, and is entitled to any seniority-based benefits and pension benefits as if continuously employed during the leave period.
  • For all other benefits (i.e. accrual of vacation leave), an employee is entitled to the same rights and benefits as similarly situated employees on comparable leaves.
  • Military leave is generally unpaid, however, an employee may elect to use any accrued paid vacation or similar leave during military leave.
  • An employer is not allowed to discharge a reemployed employee following military service except “for cause” within one year after reemployment, if the most recent period of military service was more than 180 days. If the most recent period of military service was more than 30 days but less than 181 days, the employee cannot be discharged within 180 days after the date of reemployment except “for cause.” This provision even applies to “at will” employees.
  • Discrimination against employees is prohibited based upon an employee’s military service. Employers are prohibited from retaliating against employees for exercising their rights under these laws and participating in an investigation or proceeding involving alleged violations of USERRA.

Further, employers are mandated to provide a notice to employees of their USERRA rights. Employers can fulfill this notice requirement by using a poster from the Department of Labor that can be located at http://www.dol.gov/vets/.

Finally, employers should review their handbooks and policies regarding employee absence while in military service and reemployment rights to ensure they are consistent with federal and California law.
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