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Employment Alert

October 2001

Employer Obligations to Employees Performing Military Service

By Martha L. Lester, Esq.

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iven the tragic events of September 11, 2001, many of you have asked what types

• f leaves, job protections, and/
• r re-

employment opportunities you are obligated to provide to employees performing military service. This Client Alert focuses, in summary fashion, on what employers must do to comply with New Jersey and federal laws for employees who will be engaged in military service. All New Jersey employers, regardless of workforce size, must comply with both the Uniform Services Employment and Reemployment Rights Act of 1994 (“USERRA”) and New Jersey law under the New Jersey Soldiers’ and Sailors Relief Act

• f

1979 (“Relief Act”)(collectively the “Acts”). The Acts primary focus is the protection of the civilian positions of non-career personnel who have served in the armed forces. Which employers are covered under the Acts? As stated above, all New Jersey employers must comply with the Acts. Where the provisions of the USERRA and the Relief Act conflict, the employer must comply with the provision that offers the greatest protection to the employee. The Acts are the minimum standard that an employer must

• meet. Any law, collective bargaining agreement, or

employment policy offering less protection than that provided under the Acts will be deemed void. However, laws, collective bargaining agreements,

• r employment policies offering more protections

than those provided under the Acts are not superseded by the Acts but are considered additive. Which employees qualify? All employees must be permitted to take leave if they provide advance written or oral notice to the employer, (30 days, if possible), and are engaged in training, duty, reserves, war or national emergency or have other orders to report to the military on a voluntary or involuntary basis. Military service is service in the Army, Navy, Marine Corps, Air Force, Coast Guard, Public Health Service, National Guard, reserves for all branches, training for the Army National Guard and Air National Guard, and any other category of individuals designated by the President in time of national emergency or war. What is the duration period of a military leave? Under USERRA, the length of time that an employee may be absent as a result of military duty and retain re-employment rights is five years. But

...the employer must comply with the provision that offers the greatest protection to the employee.

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This document is published by Lowenstein Sandler PC to keep clients and friends informed about current issues. It is intended to provide general information only.

65 Livingston Avenue www.lowenstein.com

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Roseland, New Jersey 07068-1791 Telephone 973.597.2500 Fax 973.597.2400

there are exceptions to this limit. Initial enlistments lasting more than five years, periodic training duty, and involuntary active duty extensions and recalls, especially during a time of national emergency are among these. Is the leave paid? Employers do not have to pay the employee’s wages while the employee is on military leave. However, employers who provide health plans must continue coverage for the employee and his/ her dependents for the shorter of either: 18 months after the employee begins service or when the employee’s re-employment period runs out. Since the employee on active duty is considered to be on leave of absence, the employee “is entitled to such other rights and benefits not determined by seniority as are generally provided by the employer

• f the person to employees having similar seniority,

status and pay who are on furlough or leave of absence under a contract, agreement, policy, practice or plan in effect at the commencement of such service or established while such person performs such service.” Thus, if a bonus is payable to employees and the company has a policy to pay these to individuals on leaves of absence, a bonus must be paid. The employer may not require the employee to use vacation or personal leave for any part of the military leave, although the employee may elect to do so. Employers must maintain the employee’s benefit plans after his or her return as if the employee had worked for the company continuously during the time of service. Is an employer obligated to rehire an employee after a military leave? Assuming prior notice has been provided, the length of time away from the workplace is within defined parameters, and the employee reports to work with specified time frames, employers are

• bligated to rehire an employee under most
• conditions. Employees are entitled to be re-

employed in a position similar in seniority to a position they would have held as if they had never

• left. This is known as the “escalator position.”

The position may have greater or lesser responsibilities than the one previously held by the employee, and may include a layoff status. The position should be comparable to that held by

• ther employees of the same seniority and status

employed by the company. Successor companies are responsible for re-employing returning employees if the basic structure of the company is the same. An employer is not required to re-employ a returning employee if the employee had worked at the company only briefly and there was no reasonable expectation that the position would continue for a significant period. Nor is the employer required to rehire a returning employee if the employer’s circumstances have changed economically or the workplace has been reorganized so that re-employment is impossible or unreasonable or if the employee’s position or equivalent position no longer exists. An employer also does not have to re-employ if the individual: 1) has a service related injury that cannot be

The employer may not require the employee to use vacation or personal leave for any part of the military leave... Employees are entitled to be re-employed in a position similar in seniority to a position they would have held as if they had never left.

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reasonably accommodated without undue hardship, 2) is no longer qualified for the escalator position and cannot be accommodated after a reasonable effort is made by the employer to qualify the employee for the position (i.e. training), 3) was discharged for dishonorable or bad conduct, or 4) has been absent for more than five years without a service-related excuse. When must the employee report back to work? The period an individual has to apply for re- employment or report back to work after military service is based on the length of time spent on military duty. For service of less than 31 days, the individual must return to work at the beginning of the next regularly scheduled work period on the first full day after release from service, taking into account safe travel home, plus an eight-hour rest

• period. For service of more than 30 days but less

than 181 days, the individual must submit an application for re-employment within 14 days of release from service. For service of more than 180 days, an application for re-employment must be made within 90 days of release from service. What if the Employer fails to comply with the Acts? Employers may have to pay court-ordered damages if they do not re-employ after military service and a New Jersey court finds that it was not reasonable or impossible for the employer to comply with Relief Act re-employment provisions. The United States Department of Labor, through the Veteran’s Employment and Training Service, provides assistance to individuals with claims under USERRA. If, after an investigation, there is no resolution of the claim, the employee may refer the claim to the United States Department of Justice for representation in a judicial action, at no cost to the individual. Liquidated damages and attorneys fees may be received if the individual prevails. What if the employer wants to discharge the returned employee? Returning employees who are re-employed may not be discharged without cause within a certain period if they have served more than 30 days of military duty. If the employee has served longer than 30 days, but less than 181 days, he or she may not be discharged without cause for 180 days from his or her return to work. If the employee served more than 180 days, he or she may not be discharged without cause for a year. If you are concerned whether your workplace is in compliance with these Acts, please call Martha L. Lester, Chair of the Employment Law Practice Group, at (973) 597-2388. We would also be pleased to provide you with advice respecting your other employment-related needs and workplace compliance issues.

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“A Practical Guide to New Jersey Employment Law: The Employer’s Resource.” This Guidebook, published by Lowenstein Sandler in connection with the New Jersey Business and Industry Association, is the resource for New Jersey employers seeking to comply with New Jersey laws, regulations and procedures in the employment- related area. The book covers topics such as:

Overview of the employment relationship (from

hire to fire)

Employment-related documentation and audits Employment investigations and monitoring Compensation and benefits Workplace safety and violence Medical and other leaves Discrimination and harassment Employment-related insurance Post-employment claims, litigation and arbitration Technology, trade secrets, and restrictive covenants

Ordering Information: New Jersey Business & Industry Association Members: $60 Nonmembers: $90

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To order please call Dawn Miller at NJBIA at 609.393.7707 ext. 224

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