G 2001, many of you have asked what types or employment policies - PDF document

G Employment Alert October 2001 Employer Obligations to Employees Performing Military Service By Martha L. Lester, Esq. iven the tragic events of September 11, However, laws, collective bargaining agreements, G 2001, many of you have asked what types or employment policies offering more protections of leaves, job protections, and/ or re- than those provided under the Acts are not employment opportunities you are obligated to superseded by the Acts but are considered provide to employees performing military service. additive. This Client Alert focuses, in summary fashion, on what employers must do to comply with New Jersey Which employees qualify? and federal laws for employees who will be engaged All employees must be permitted to take leave in military service. All New Jersey employers, if they provide advance written or oral notice to regardless of workforce size, must comply with both the employer, (30 days, if possible), and are the Uniform Services Employment and engaged in training, duty, reserves, war or national Reemployment Rights Act of 1994 (“USERRA”) and New Jersey law under the New Jersey Soldiers’ ...the employer must comply with the provision and Sailors Relief Act of 1979 (“Relief that offers the greatest protection to the employee. Act”)(collectively the “Acts”). The Acts primary focus is the protection of the civilian positions of non-career personnel who have served in the emergency or have other orders to report to the armed forces. military on a voluntary or involuntary basis. Military service is service in the Army, Navy, Which employers are covered Marine Corps, Air Force, Coast Guard, Public under the Acts? Health Service, National Guard, reserves for all As stated above, all New Jersey employers must branches, training for the Army National Guard comply with the Acts. Where the provisions of the and Air National Guard, and any other category of USERRA and the Relief Act conflict, the employer individuals designated by the President in time of must comply with the provision that offers the national emergency or war. greatest protection to the employee. The Acts are the minimum standard that an employer must What is the duration period of a military leave? meet. Any law, collective bargaining agreement, or Under USERRA, the length of time that an employment policy offering less protection than employee may be absent as a result of military duty that provided under the Acts will be deemed void. and retain re-employment rights is five years. But 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. Roseland, New Jersey Telephone 973.597.2500 L 65 Livingston Avenue www.lowenstein.com 07068-1791 Fax 973.597.2400

G there are exceptions to this limit. Initial Is an employer obligated to rehire an employee enlistments lasting more than five years, periodic after a military leave? training duty, and involuntary active duty Assuming prior notice has been provided, the extensions and recalls, especially during a time of length of time away from the workplace is within national emergency are among these. defined parameters, and the employee reports to work with specified time frames, employers are Is the leave paid? obligated to rehire an employee under most Employers do not have to pay the employee’s conditions. Employees are entitled to be re- wages while the employee is on military leave. employed in a position similar in seniority to a However, employers who provide health plans The employer may not require the employee to must continue coverage for the employee and use vacation or personal leave for any part of his/ her dependents for the shorter of either: 18 the military leave... 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 position they would have held as if they had never be on leave of absence, the employee “is entitled to left. This is known as the “escalator position.” such other rights and benefits not determined by The position may have greater or lesser seniority as are generally provided by the employer responsibilities than the one previously held by the employee, and may include a layoff status. The Employees are entitled to be re-employed in a position should be comparable to that held by position similar in seniority to a position they other employees of the same seniority and status would have held as if they had never left. employed by the company. Successor companies are responsible for re-employing returning of the person to employees having similar seniority, employees if the basic structure of the company is status and pay who are on furlough or leave of the same. absence under a contract, agreement, policy, practice or plan in effect at the commencement of An employer is not required to re-employ a such service or established while such person returning employee if the employee had worked at performs such service.” Thus, if a bonus is payable the company only briefly and there was no to employees and the company has a policy to pay reasonable expectation that the position would these to individuals on leaves of absence, a bonus continue for a significant period. Nor is the must be paid. The employer may not require the employer required to rehire a returning employee if employee to use vacation or personal leave for any the employer’s circumstances have changed part of the military leave, although the employee economically or the workplace has been may elect to do so. Employers must maintain the reorganized so that re-employment is impossible or employee’s benefit plans after his or her return as if unreasonable or if the employee’s position or the employee had worked for the company equivalent position no longer exists. An employer continuously during the time of service. also does not have to re-employ if the individual: 1) has a service related injury that cannot be

G reasonably accommodated without undue Justice for representation in a judicial action, at no hardship, 2) is no longer qualified for the escalator cost to the individual. Liquidated damages and position and cannot be accommodated after a attorneys fees may be received if the individual reasonable effort is made by the employer to qualify prevails. the employee for the position ( i.e. training), 3) was discharged for dishonorable or bad conduct, or 4) What if the employer wants to discharge the has been absent for more than five years without a returned employee? service-related excuse. Returning employees who are re-employed may not be discharged without cause within a When must the employee report back to work? certain period if they have served more than 30 The period an individual has to apply for re- days of military duty. If the employee has served employment or report back to work after military longer than 30 days, but less than 181 days, he or service is based on the length of time spent on she may not be discharged without cause for 180 military duty. For service of less than 31 days, the days from his or her return to work. If the individual must return to work at the beginning of employee served more than 180 days, he or she the next regularly scheduled work period on the may not be discharged without cause for a year. first full day after release from service, taking into If you are concerned whether your workplace is in account safe travel home, plus an eight-hour rest period. For service of more than 30 days but less compliance with these Acts, please call Martha L. than 181 days, the individual must submit an Lester, Chair of the Employment Law Practice Group, at (973) 597-2388. We would also be pleased to application for re-employment within 14 days of release from service. For service of more than 180 provide you with advice respecting your other days, an application for re-employment must be employment-related needs and workplace compliance issues. 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