Legal Protections for Service Members and the Duties of Businesses

INTRODUCTION

Many people and businesses are feeling the effect of members of the uniformed services being called to active duty. As members of the National Guard and the Reserves are called upon to leave their normal lives to serve their country, businesses are also called upon to uphold their legal duties to those servicemembers. Most of these legal duties are found in two federal laws – The Uniformed Services Employment and Reemployment Act (USERRA) and The Servicemembers Civil Relief Act (SCRA).

THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT (USERRA)

USERRA covers ALL employers regardless of size. USERRA gives military members certain rights regarding employment. 38 U.S.C. 4301-4334.

The law creates duties employers must uphold. The specific duties an employer has depends on the specific circumstances of the situation. Therefore, this document is meant as an overview only – you should seek legal counsel for specific situations to assure that you are in compliance with USERRA.

The term “Employer” can include individual managers or supervisors that has control over employment opportunities.

Discrimination: The USERRA makes discrimination based on military service, even in part, unlawful. 38 U.S.C. 4311. USERRA prohibits discrimination because of past, current, or future military obligations when it comes to hiring, promotion, reemployment, termination, and benefits. In other words, USERRA protects employees (or potential employees) for their past service as well as their future service. An employer would be illegally discriminating if it refused to hire a Vietnam Veteran because he was a Vietnam Veteran or if the employer refused to hire someone that was part of the National Guard because she may be called to active duty.

Retaliation Prohibited: An employer is prohibited from retaliating against anyone who files a complaint under the law, testifies or otherwise assists in an investigation or proceeding under the law or exercises any right provided under the law. Note that this protection can extend to an employee who has not performed military service.

Eligible Employees:

  1. Service in the Uniformed Services – Army, Navy, Marine Corps, Air Force, Coast Guard, Army Reserve, Naval Reserve, Marine Corps Reserve, Air Force Reserve, Coast Guard Reserve, Army National Guard, Air National Guard, Commissioned Corps of the Public Health Service, and any other category of persons designated by the President in time of war or emergency. Generally, protection for reserve and National Guard members if active service is for 30 or more consecutive days.
  2. Cumulative length of absence from a position of employment does not exceed five years – note there are exceptions that allow longer than five year absence.
  3. Honorable Discharge.

Duties of Employers:

  1. Provide notice of rights under USERRA. There is a poster that explains the rights. The poster is available at the US Dept. of Labor website listed under Other resources.
  2. Prompt reemployment of eligible employees in proper position. What is the proper position depends on length of service and other circumstances. 38 U.S.C. 4313.
    1. Proper position is generally the “Escalator” position. The returning employee steps back onto the seniority “escalator” at the point the person would have occupied if the person had remained continuously employed.
      1. The position may not be the same job held prior to leaving for service. If the person would have been promoted with reasonable certainty had the person not been absent, the person would be entitled to that promotion.
      2. USERRA places a burden on the employer to make reasonable efforts to qualify the person for the “escalator” position. This could include refresher training or other training to update the employee’s skills.
    2. Prompt reemployment depends on the circumstances of the individual case.
    3. Successor Employers: May have the same obligation as its predecessor to fulfill reinstatement requirements.

Rights of Employers:

  1. Advance notice of military service.
  2. Timely report back to work.
  3. Right to request documentation that a person who is absent for a period of service of 31 days or more showing that application for reemployment is timely, not exceeded the five-year service limitation; and the type of separation from service does not disqualify him/her from USERRA protections.
    1. Note that lack of readily available documentation does not mean that the employer does not have the duty to reinstate the employee. However, once the documentation becomes available, if it shows the person is not eligible for USERRA reemployment benefits, the employer may terminate the employee effective at that moment. 38 U.S.C. 4312(f)(3)(A).
    2. However, retroactive pension contributions can be delayed until satisfactory documentation is received. 4318.

Rights of Eligible Employees:

  1. Notice of Rights under USERRA.
  2. Reinstatement to proper position.
  3. Seniority and all rights and benefits seniority based that they would have attained with reasonable certainty had they remained continuously employed. 38 U.S.C. 4316(a).
  4. To be treated as if they were on a leave of absence. Therefore they are entitled to participate in any rights and benefits not based on seniority that are available to employees on nonmilitary leaves of absence.
    1. The employee may be required to pay the employee cost of any funded benefit to the extent that other employees on leave of absence would be required to pay. 38 U.S.C. 4316(b)(4).
  5. The reemployed employee is protected from discharge without cause for one year from date of reemployment if service was for more than 180 days and for six months if service was for 31 to 180 days.

Duties of Employees Called to Active Duty:

  1. Provide employer advance notice of military service.
    1. May be oral or written
    2. May be provided by employer or officer of branch of military in which the employee will be serving
    3. No notice is required if military necessity prevents or notice is otherwise impossible or unreasonable.
  2. Report back to work in timely manner – amount of time varies depending on length of service. Note that there are exceptions to the times provided below if reporting back is impossible or unreasonable through no fault of the employee’s.
    1. 1-30 days = report first regularly scheduled work period after reasonable time to travel and an 8-hour rest period.
    2. 31-180 days = application for reemployment must be submitted no later than 14 days after completion of service.
    3. 181 days or more = application for reemployment must be submitted no later than 90 days after completion of service.
    4. These periods are extended for up to two years for persons who are hospitalized or convalescing because of a disability incurred or aggravated during the period of military service.
    5. The employee’s reemployment rights are not automatically forfeited if the person fails to report to work or apply for reemployment within the time limits. The employee would then be subject to the employer’s rules governing unexcused absences.

Exemptions from USERRA Reemployment Requirement:

  1. The employer is exempt from reemployment obligation if the employee’s pre-service position of employment “is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period.” 38 U.S.C. 4312(d)(1)(c).
  2. If the service-member was separated from service with a dishonorable or bad conduct discharge or separated under other than honorable conditions then he or she is not entitled to USERRA protections. 38 U.S.C. 4304.
  3. If changed circumstances of the employer make reemployment impossible or unreasonable. 38 U.S.C. 4312(d)(1)(A). For instance a reduction-in-force that would have included the person applying for reemployment would mean that the person would not have to be reemployed.
  4. Undue hardship for employer would excuse the employer from making efforts to qualify returning servicemembers or from accommodating individuals with service-connected disabilities. 38 U.S.C. 4312(d)(1)(B).

Disabilities incurred or aggravated while in Military Service (4313(a)(3)):

  1. The employer must make reasonable efforts to accommodate so that person can perform the “escalator” position.
  2. If reasonable accommodation for “escalator” position fails, the person must be employed in a position of equivalent seniority, status, and pay if the person is qualified or can become qualified with reasonable efforts by the employer.
  3. If neither of these work, then the person must be employed in a position that most nearly approximates number 2 in terms of seniority, status, and pay.

Conflicting USERRA Reemployment Claims:

If two or more persons are entitled to reemployment in the same position, the person who left the position first has the superior right to it. The person without the superior right is entitled to employment with full seniority in any other position that provides similar status and pay. This means that a person that has held a similar position and never left it may be replaced by one of the returning servicemembers.

Forfeiture of Rights:

If, prior to leaving for service, an employee knowingly provides clear written notice of an intent not to return to work after military service, the employee waives entitlement to leave-of-absence rights and benefits not based on seniority. The employee must be aware of the specific rights and benefits to be lost for the waiver to be valid. Notices of intent not to return cannot surrender other rights and benefits that a person would be entitled to under USERRA – therefore, reemployment rights cannot be waived. 38 U.S.C. 4316(b)(2)(A)(ii).

Pension/Retirement Plans:

Pension plans tied to seniority are governed by 38 U.S.C. 4318. The law is very specific. Generally, the person must be treated as not having incurred a break in service with the employer. Military service is considered service for vesting and benefit accrual purposes. The employer is liable for funding any resulting obligation. Repayment of employee contributions can be made over three times the period of military service but no longer than five years following reemployment.

Vacation Pay:

Servicemembers are permitted, at their request, to use any vacation accrued in place of unpaid leave. Servicemembers may not be required to use vacation time for military service. 38 U.S.C. 4316(d).

Servicemembers do not continue to accrue vacation and sick time while on leave.

Health Benefits:

Health plan benefits can be continued by the employee even if COBRA does not apply to the employer. 38 U.S.C. 4317(a)(1). The person may elect to continue health plan coverage for up to 24 months after the absence begins. The person cannot be required to pay more than 102 percent of the full premium coverage. If service was for 30 or fewer days, then the person cannot be required to pay more than the normal employee share of any premium.

If the military member is called to federal active duty for more than 30 days, the military health plan for members and their families kicks in. However, the family could still choose to maintain the employer’s health benefits under the terms stated above. National Guard members who are not called for federal active duty would only be able to get health coverage through the military for themselves, not their families. This is why they are often called only for periods of time shorter than 30 days.

Employer health insurance must be reinstated the day the employee is reinstated to work with no waiting period.

Enforcement of USERRA:

Reemployment assistance is provided by the Veterans’ Employment and Training Service (VETS) of the Department of Labor. 4321. VETS investigates complaints and attempts to resolve meritorious complaints. It is optional for the employee to file a complaint with VETS. 38 U.S.C. 4322. VETS has a right of access to examine and duplicate employer and employee documents and to interview persons that it considers relevant. 38 U.S.C. 4326(a). VETS can subpoena documents and witnesses. 4326(b). The Attorney General may be requested to take possible court action on complaints it find meritorious. 38 U.S.C. 4323(a)(1) Individuals have the option to privately file court actions. 38 U.S.C. 4323(a).

Damages for Violation of USERRA:

The employee may be awarded back pay and lost benefits. This award may be doubled in cases where the violations are found to be willful. 38 U.S.C. 4323(d)(1)(c). The law also allows for awards of attorney fees, expert witness fees, and other litigation expenses to successful plaintiffs who retain private counsel. 38 U.S.C. 4323(h)(2). The law bans charging of court fees or costs against anyone who brings suit. 38 U.S.C. 4323(c)(2)(A).

Minnesota’s National Guard Leave of Absence

Minnesota offers reemployment protections for a member of the National Guard who “engages in active service in the military forces in time of emergency declared by the proper authority for the state…” Minn. Stat. 192.261.

Basically, the Minnesota statute provides for reemployment in the same position or the position the employee would have been in had he or she not been called to duty. The same rights must be given the employee including vacation and sick leave as if that employee had been actually employed during the time of such leave.

The Minnesota provisions apply when federal USERRA does not apply – generally when called up for a period less than 30 days or for a state emergency rather than a federal emergency. The Minnesota statute gives even greater rights to employees of the state.

THE SERVICEMEMBERS CIVIL RELIEF ACT (SCRA)

The SCRA provides non-employment related protections to servicemembers called to federal active duty. 50 U.S.C. App. 501 et seq. The SCRA also provides some protections to dependents of servicemembers. The purpose of the SCRA is “to provide for, strengthen, and expedite the national defense through protection extended… to servicemembers of the United States to enable such persons to devote their entire energy to the defense of the Nation.”

The SCRA covers issues such as rental agreements, security deposits, prepaid rent, eviction, installment contracts, interest rates, mortgage foreclosure, civil judicial proceedings, income tax payments, health insurance and life insurance protection. Many of these protections are not automatic. Instead, the service-member must request the benefits.

This section is only meant as an overview of some of the protections provided to servicemembers.

Lease Agreements:

SCRA allows the service-member to terminate certain leases for dwelling, professional, business, agricultural, or automobile leases. 50 U.S.C. App. 535. The provisions allow for terminations of certain leases in specific situations, including some in which the lease is entered into while the service-member is already in active duty. The SCRA provides for a specific manner for the termination to occur. Prepaid amounts must be repaid within 30 days of the effective date of the termination of the lease. The SCRA does allow the lessor to apply to the court to modify the relief granted by the SCRA “as justice and equity require.” 50 U.S.C. App. 535. A knowing violation of this part of the SCRA is a misdemeanor.

Eviction:

The SCRA also requires landlords to do more before evicting the family of a service-member. The landlord must obtain a court order to evict the service-member or his/her family. If the court finds that military service materially affects the ability to pay the rent, the court can stay the eviction for three months. This protection applies if the rent agreed to be paid is less than $2400 per month (subject to inflation adjustment). 50 U.S.C. App. 531.

Interest Rates:

In many situations, the service-member has the right to request that interest charged on debts be decreased to 6%. However, this is only applicable to debts incurred prior to being called to active duty. The service-member must provide written notice to the creditor requesting the interest to be lowered. Such notice must be provided within 180 days after the date of the service-member’s release from military service. The service-member must state that the military service has materially affected his ability to pay. The difference in interest is forgiven, not merely deferred. 50 U.S.C. App. 527.

Mortgage Foreclosure:

If an obligation was incurred before the period of the service-member’s military service, an action to enforce the service-member’s obligation the proceedings may be stayed for a period of time as justice and equity require or adjust the obligation to preserve the interests of all parties. Again, there must be an indication that the military service has materially affected the service-member’s ability to comply with the obligation. A sale, foreclosure or seizure of property for breach of any such obligation is not valid if made during the period of military service or within 90 days thereafter unless certain requirements are followed. A violation of this provision can be a misdemeanor. 50 U.S.C. App. 533.

Civil Judicial Proceedings:

Court or civil administrative proceedings can be postponed for a mandatory minimum of 90 days upon the service-member’s request for this protection. 50 U.S.C. App. 522. The request must be in writing and state why the military duty materially affects the servicemembers ability to appear, provide a date when the service-member can appear, and include a letter from the commander stating that the service-member’s duties preclude his or her appearance and that he is not authorized leave at the time of the hearing.

Default Judgments: The SCRA also provides the service-member certain rights in reopening default judgments obtained during his or her active duty service, or within 60 days thereafter. To reopen and set aside a default judgement, the service-member must show that he or she was prejudiced by not being able to appear in person, and that he or she has good and legal defenses to the claims. The service-member must apply to the court for relief within 90 days of the termination or release from military service. 50 U.S.C. App. 521.

Execution/Attachment/Garnishment: An execution of judgement, attachment or garnishment may be stayed or vacated under the SCRA. If a service-member is materially affected by reason of military service in complying with a court judgement or order, the court may on its own motion and shall on the application by the service-member, stay the execution of any judgement or order and vacate or stay an attachment or garnishment of property, money, or debts in the possession of the service-member or a third party…” 50 U.S.C. App. 524.

If protection is given to a service-member, the court may also grant a stay, postponement, or suspension to a surety, guarantor, endorser, accommodation maker, comaker, or other person who is or may be primarily or secondarily subject to the obligation. 50 U.S.C. App. 513. A plaintiff may continue against a codefendant that is not in military service upon approval by the court. 50 U.S.C. App. 525.

The SCRA can also delay the statute of limitations from running in civil claims the service-member may have. 50 U.S.C. App. 526.

Contracts:

If an action for compliance with terms of a contract is stayed pursuant to the SCRA, a penalty cannot accrue for failure to comply with the terms of the contract during the period of the stay. This may include interest or late payment charges. “If a service-member fails to perform an obligation arising under a contract and a penalty is incurred arising from that nonperformance, a court may reduce or waive the fine or penalty” under certain conditions. 50 U.S.C. App. 523.

Health Insurance Protection:

If the service-member, prior to being called to active duty, had health insurance that was not provided by the employer, then upon returning from active duty, that service-member is entitled to reinstatement of the health insurance with no waiting period. The service-member must apply for the reinstatement of the health insurance within 120 days after termination or release from military service. 50 U.S.C. App. 594.

Life Insurance:

The insurer cannot decrease the amount of coverage or require the payment of an additional amount as premiums if the insured engages in military service or limit or restrict coverage for any activity required by military service.” 50 U.S.C. App. 541.

Storage Liens:

A person holding a storage lien on the property of a service-member may not foreclose or enforce the lien on such property during the period of military service or for 90 days thereafter unless a court order before foreclosure or enforcement. 50 U.S.C. App. 537. Any proceeding to foreclose or enforce a lien can be stayed “for a period of time as justice and equity require.” The court may also “adjust the obligation to preserve the interest of all parties.” Misdemeanor penalties can be incurred for violation of this section.

Effect of Exercise of Rights:

The servicemembers exercise of rights under the SCRA cannot provide the basis for a determination by a lender that the service-member is unable to pay the civil obligation, a denial or revocation of credit, a change in terms of the existing credit terms, an adverse report relating to the creditworthiness of the service-member, a refusal to insure the service-member, an annotation in consumer credit information that the person is a member of the service, or a change in the terms offered for the issuance of insurance. 50 U.S.C. App. 518.

Waiver of Rights Under SCRA:

In general, a service-member may waive the rights provided under the SCRA. 50 U.S.C. App. 517. The waiver is effective only if in writing executed during or after the service-member’s period of military service.

CONCLUSION

As can be noted by a brief review of the material above, when dealing with a person in military service or who has recently been in military service, very specific laws may protect that person. This pamphlet is only an overview of the more common service-member related issues facing employers and business people.

To avoid legal liability and to assure compliance with all applicable laws, you should consult with an attorney about the specific situation.

OTHER RESOURCES

U.S. Department of Labor:
http://www.dol.gov/

Poster:
http://www.dol.gov/vets/programs/userra/USERRA_Private.pdf#Non-Federal

VETS:
http://www.dol.gov/vets/programs/userra/USERRA_Private.pdf#Non-Federal

Employer Support of the Guard and Reserve(ESGR):
www.esgr.org
1-800-336-4590

Small Business Association:
http://www.sba.gov/reservists/

SCRA:
http://usmilitary.about.com/od/sscra/l/blscramenu.htm

Ryan & Grinde. Ltd.:
http://www.ryanandgrinde.com/

DISCLAIMER:

This information has been prepared for general information purposes only. This information is not legal advice. Legal advice is dependant upon the specific circumstances of each situation. Laws not only vary from jurisdiction to jurisdiction, but also change frequently within a given jurisdiction. Therefore, this information cannot replace the advice of competent legal counsel in your state.