After Call of Duty: Returning from Military Service to the Work Place
The United States recently commemorated the tenth anniversary of the 9/11 terrorist attacks. In addition to the global “war on terrorism,” the past decade has seen our country involved in two simultaneous ground wars (in Afghanistan and Iraq). Unlike prior wars lasting several years, the wars of the past decade have been waged by the career military services, regularly and significantly supplemented by “citizen soldiers” from the all volunteer National Guard and Reserves. Unlike the draftees from prior wars, members of the Guard and Reserve are generally older, many with families. More importantly for purposes of this article, members of the Guard and Reserves tend to have established jobs and careers with specific employers which are placed at risk by the call to active duty.
Not surprisingly, the federal government (and most states as well) has acted to encourage membership in the Guard and Reserves by adopting a variety of laws to protect service members’ re-employment prospects and their eligibility for different types of employment benefits.
The primary federal vehicle for promoting this policy is the Employment and Reemployment Rights of Members of the Uniform Services Act, codified at 38 United States Code §§ 4301through 4333. As explained by the U.S. Supreme Court, this Act has been adopted by Congress on the principle that “he who is called to the colors is not to be penalized by reason of his absence from his civilian job.” § 4301 states that one purpose of the Act is “…to encourage noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service…”
The Act contains a laundry list of rights for returning employees, including (1) reinstatement to the same job position if service has been less than 91 days, (2) re-instatement to the same job position or a different position with like seniority, status and pay if service has been more than 90 days, (3) restoration of the seniority and benefits earned as of the date of commencement of service, (4) the addition of seniority and benefits that would have been earned had the employee been continuously employed during the period of service, and (5) reinstatement of the same health insurance coverage in effect on the day before the service began, without any exclusion or waiting period and with a limitation on any premium increase.
Also, the COBRA health insurance continuation coverage for an employee who is absent due to military service, plus his or her dependants, is extended from the normal 18 months to 24 months. Also, the period of military service cannot be treated as a break in employment for purposes of any employee pension plans, but the service period is deemed to be service with the employer for purposes of nonforfeitability and accrual of benefits. Finally, a service member who is reemployed cannot be discharged by his or her employer without cause (1) within one year of reemployment, if the service period was more than 180 days, or (2) within 180 days after reemployment, if the service period was less than 181 days.
These rights are still subject to certain conditions and exceptions. An employee must give prior notice to the employer of the departure for military service, the absence from the work place must not exceed 5 years, the employee must receive an honorable discharge at the conclusion of service, and the employee must actually apply for reemployment. The employer is excused from reemploying the returned service member if the employer’s circumstances have changed to make reemployment impossible, unreasonable or an undue burden on the employer, or the employee was only employed in a temporary, non-recurrent job position.
An employer who violates these rights can be sued in the local U.S. District Court by the returned service member or the U.S. Attorney General. The relief available to a successful service member against the employer includes a permanent injunction to cease the violation, including reemploying the service member, back pay for the period of time the service member should have been employed except for the violation, additional liquidated damages equal to the back pay award, and the service member’s attorneys’ fees, litigation expenses and court costs.
This relief seems relatively modest in comparison to the recoveries available in other situations, like the multi-million dollar judgments to auto accident victims for example, but seems to be the least we can allow for someone who put their career and life at risk for the benefit of us at home. Nevertheless, my anecdotal resaerch is that the vast majority of employers want to do the right thing and work to bring returning service members back into the job place without being prompted by the courts or government agencies.
For more information, call Attorney Joe Duesterhaus at (217) 223-3444.
