MANAGEMENT INFORMATION RELEASE
FROM: Sloan, Montgomery, Gregory & Hall, Inc.
SUBJECT: Reemployment Rights of Employees Who Volunteer or are Called for Active Duty Military Service
DATE: October 1, 2017
The South Carolina National Guard recently announced that it is deploying 20 Apache helicopters and 190 soldiers to Afghanistan in the near future. This deployment will affect employers all across South Carolina since many of the soldiers are civilians with regular full-time jobs. There are many questions that arise when an employee who is a member of the Guard or Reserves notifies the employer that he or she has been called up for active duty status.
Employees who are members of the Guard and Reserves have protections under the Uniformed Services Employment and Reemployment Rights Act (USERRA). All public and private employers are subject to this law regardless of their size or number of employees.
Employers are prohibited from discriminating against applicants based on their membership in the National Guard or Reserves. This means you cannot refuse to hire someone because of his or her Guard or Reserve status. Employment application forms should not ask applicants to indicate their military status or whether or not they are members of the Guard or Reserve. These questions should also not be asked verbally to applicants during the interview process.
USERRA requires employers to grant time off to employees for weekend and/or summer encampment training, as well as for longer deployment if the service member is called to active duty status. The employer generally must allow the service member to return to the position he/she would have held if the employee had not served in the military. This applies to any promotional opportunities that may have been available to the employee as well as any salary or benefit increases as a result of increased seniority. Other factors, such as the employee’s length of deployment, the employee’s qualifications, and whether the employee incurred or aggravated a disability during the period of service may allow or require the employer to reemploy the employee in a different position.
USERRA also provides for continuation of health benefits during a deployment. Health care coverage also remains the same as if the service member had remained employed for any military service of less than 31 days. Service members deployed more than 30 days may elect to continue their group health insurance premiums for up to 24 months, but may be required to pay up to 102 per cent of the full premium.
Employees who are called for active duty status are required to provide their employer notice as far in advance as reasonable under the circumstances. USERRA is somewhat vague in this regard and does not define what is reasonable. The Act further states that the notice may be either verbal or written, so the employer cannot require documentation of the deployment. The employer can, however, contact the employee’s military unit to confirm the employee’s deployment. Service members may be allowed but cannot be required to use accrued vacation or
other paid time off benefits while on military leave. The employee does not have to indicate his or her intent to return to work at the time of deployment.
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The employer may require documentation of successful completion of the deployment at the time the employee seeks reinstatement. USERRA only provides job protection for those who left the service under honorable conditions. No protection is afforded for those who received dishonorable or bad conduct discharges.
The amount of time the employees must give their employer of their intent to return to work depends upon the length of the deployment according to the following schedule:
0-30 days Service member must return at the beginning of the next regularly scheduled workday on the first full day after release from service, taking into account safe travel home plus an eight (8) hour rest period.
31 days – 180 days Service member must submit an application for reemployment within 14 days of release from service.
181 days and over Service member must submit application for reemployment within 90 days of release from service.
These rules also apply to employees who are not members of the Armed Forces, National Guard or their Reserve components, but who elect to join one of these branches of service.
In addition to the protections for service members, the Family and Medical Leave Act (FMLA) provides leave for specific family members of service members. This unpaid but job protected leave can be for up to 26 weeks to care for an injured service member or 12 weeks for a family member to participate in activities known as “Qualifying Exigencies.” This includes: 1) Short-notice deployment (i.e., notice of 7 days or less); 2) Military events and related activities; 3) Childcare and school activities (regular or routine childcare by the employee does not count); 4) Financial and legal arrangements; 5) Counseling; 6) Rest and recuperation; 7) Post-deployment activities; and 8) Additional activities not encompassed in the other categories, but agreed to by the employer and employee.
USERRA and FMLA offer broad protections to employees who serve in the military. It is always our recommendation that employees be given the benefit of the doubt if there is any question about the applicability of a requirement. This bulletin only addresses some of the many issues that arise with employees who are Guard or Reserve members. It is important that employers, including their managers and supervisors, be aware of their responsibilities to employees who voluntarily serve our country.
If you have questions regarding the topic covered in this Information Release, you may contact our firm, Sloan, Montgomery, Gregory & Hall, Inc., at (803) 782-9246.
This bulletin is provided as a service to clients and is only to give information of a general nature. It is not intended as, nor should it be considered, legal advice or opinion.