In the wake of the September 11 terrorist attacks, many employers have been faced with employees being called for military duty. Taking a military leave of absence to serve the country raises many issues for both employers and employees, especially what happens to these employees and their jobs and benefits when they return from duty. Federal and state laws give us guidance in determining employers’ and employees’ obligations with respect to reemployment rights after a military leave of absence.1 This article provides an overview of the relevant law and explores employees’ rights and responsibilities and employers’ obligations under the applicable military leave statutes.
The federal Uniformed Service Employment and Reemployment Rights Act of 1994 ("USERRA") and Illinois’ Service Men’s Employment Tenure Act define which employees are entitled to reemployment rights and what their obligations are to receive these rights.2 Both statutes apply to the majority of employees called to active duty, either voluntarily or involuntarily, by the Army, Navy, Marines, Air Force, Coast Guard, Army National Guard, and Air National Guard.3 The law, however, does not apply to employees whose employment is "for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period."4 That is, under both federal and Illinois state law, temporary or casual employees are not entitled to reemployment rights.5
Covered employees must satisfy certain criteria to receive reemployment rights. First, USERRA requires that employees give advance notice of their military service obligations.6 The notice may be either verbal or written and may be provided by an officer of the uniformed service in which the employee will serve.7 Usually, employers require employees to submit copies of their training notices or military orders to show proof of the need for such a leave of absence.8 In addition, employers may contact the officer in the military branch who issued such notices or orders to confirm their validity.9 However, advance notice is not mandated if "military necessity" so dictates or "such notice is otherwise impossible or unreasonable."10
Second, USERRA requires that employees complete their military service honorably.11 Specifically, the statute sets forth four circumstances under which an individual’s reemployment rights will terminate because of inappropriate conduct. They are: (1) separation from service "with a dishonorable or bad conduct discharge"; (2) a commissioned officer’s dismissal in circumstances involving a court martial or by the President’s order in a state of war; (3) a commissioned officer being dropped from the rolls when he/she has been on an unauthorized absence for more than three months or who is imprisoned by a civilian court; and (4) separation from the service due to "other than honorable conditions."12
Finally, under both USERRA and Illinois law, the employee has the responsibility to re-establish contact with his/her employer within certain designated time frames after the completion of military service. In particular, USERRA provides that
With respect to re-establishing contact with an employer after a military leave, Illinois law is more beneficial to employees than federal law is. Under Illinois law, an employee has up to 90 days after he/she is relieved from service to apply for reemployment, regardless of the length of time served.16 Because USERRA provides that, if state law provides greater benefits to the employee, state law controls, Illinois covered employees have the maximum amount of time to reapply for employment as allowed by USERRA, without the obligation to serve a minimum amount of time.17 In light of this, Illinois employers should review their Military Leave Policies to ensure compliance with both federal and state laws and regulations.
In general, USERRA’s protections are not applicable to employees whose military leave of absence exceeds five years cumulatively while employed by the same employer.18 Employers, however, should be mindful that an exception to this five-year limitation may be made to give more employees protection under the statute because of our declared state of national emergency.19
Several issues arise both while the employee is on his/her military leave of absence as well as when the employee seeks reinstatement after the leave.
Generally, employees’ absences due to military service are unpaid, unless employees request to use any accrued vacation time in lieu of the unpaid leave.20 Employers, however, cannot require employees to use their vacation time during the period of their military service.21
Employers should be mindful that, for employees exempt from overtime pay under the Fair Labor Standards Act, salary deductions cannot be made in increments of less than a week.22 That is, if an employee works on a Monday and Tuesday and his/her military leave of absence commences on that Wednesday, the exempt employee must be paid for the entire week. If, on the other hand, the employee’s military leave of absence begins on a Monday and the employee does not work that entire week (Monday through Friday), the employer may make a weekly salary deduction for the time not worked.
With respect to benefits, employees on a military leave of absence must be treated the same as similarly situated employees on other leaves of absence.23 For instance, if an employer provides vacation accrual, life insurance, continued health insurance, disability insurance, or other benefits to employees while they are on a non-military leave of absence, these same benefits must be given to those on a military leave of absence. With respect to vacation benefits, if employees on leave do not accrue this time, employees on military leave need not accrue the time. At a minimum, however, employees returning from military leave are entitled to any vacation accrued when the leave started, and they begin accruing vacation at the rate the employee would have attained it if he/she had not gone on military leave.24 Specifically, employees who return from their military leave are entitled to "the seniority and other rights and benefits determined by seniority" that they would have obtained had they not taken the leave.25 Rights and benefits determined by seniority are those that accrue with the individual’s length of service.26 If, on the other hand, rights or benefits are not seniority-based (i.e., compensation for work performed or subject to a particular contingency), they are only available to employees at the time they left for military service.27
USERRA also requires employers to offer employees on military leave the option of continuing their health insurance coverage for a period of up to eighteen months by having employees pay the cost of this coverage.28 Employees on a leave that does not exceed 31 days can only be required to contribute their normal share of the premium for their continuation coverage.29 If the leave exceeds 31 days, employers may require employees to contribute up to 102% of the premium under the health plan.30 This extra cost may be added to cover employer administrative costs to continue the coverage.31
In addition, with respect to pension rights, USERRA requires employers to treat employees "as not having incurred a break in service with the employer."32 An employer must make any pension contributions that it would have made on the employee’s returning from military leave behalf had the employee not gone on leave.33
With respect to contributory plans whereby benefits are only offered if the employee makes contributions, employers must give employees returning from military leave "three times the period of the person’s services in the uniformed services … not to exceed five years" to pay delinquent contributions.34
Assuming an employee has satisfied the criteria for reinstatement, an employer has a duty to reemploy the employee, with a few limited exceptions.35 Except with respect to individuals who have a disability incurred in or aggravated by military service, the position into which he/she is reinstated is determined by the length of his/her military service.36 Employees whose service was for less than 91 days must be "promptly reemployed" in the following order:
Employees whose service is for 91 days or more also must be "promptly reemployed."39 The order of reemployment is as follows:
The reemployment position with the highest priority in the reemployment schemes reflects the "escalator principle," which has been a major component in federal veterans’ reemployment legislation.42 The escalator principle requires an employee returning from military duty to return to the place on the seniority escalator where he/she would have been had he/she remained continuously employed.43 In other words, the position to which the employee returns may not necessarily be the same one he/she held prior to the leave.44 For example, if the individual would have been promoted with reasonable certainty had he/she not gone on military leave, the individual is entitled to that promotion upon reinstatement.45 In the alternative, the individual may be reinstated to a lower level than that previously held, a different job, or a layoff status.46
Federal and Illinois laws vary with respect to terminating employees reemployed after a military leave. Under USERRA, employees reemployed after a military leave of 181 days or more cannot be discharged without cause for one year after their reemployment date.47 In addition, employees reemployed after a military leave of 30 days but less than 180 days cannot be discharged without cause for six months after their reemployment date.48 This protection is not given to employees whose military leave is for less than 30 days.
Under Illinois law, any employee returning from military leave, regardless of his/her length of military service, cannot be discharged without cause for one year.49 Because Illinois law is more beneficial to employees than federal law is, state law prevails.50 Employers should be mindful of these provisions because they constitute exceptions to the general rule of employment at will in Illinois.
In addition to USERRA providing protections to employees regarding discharge, the law also protects employees from discrimination and retaliation because of past, present, or future military obligations.51 Employers are considered to have retaliated against employees when employers take an adverse employment action against employees for filing complaints under the statute; testifying, assisting, or participating in investigations or proceedings under the statute; or exercising any right created by the statute.52
Employees may bring both federal and state law claims against employers that fail to comply with the law. In addition, under USERRA, the Attorney General may submit a complaint against an employer and commence an action for relief on behalf of the individual.53 Under USERRA, a court may award relief in the following manner: (1) requiring the employer to comply with the statute;54 (2) requiring the employer to compensate the individual for any lost wages or benefits as a result of the statute violation;55 and (3) requiring the employer to pay liquidated damages if the violation of the statute was willful.56 Under state law, although liquidated damages are not available, recouping reasonable attorney’s fees is available.57
Both employers and employees should familiarize themselves with their rights and duties under the law. Armed with the information in this article, the practitioner will be prepared to advise both employers and employees on these matters. We all need to be ready to do our part to help the men and women who serve to protect our freedom.
1 The Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. §§ 4301 et seq.; the Service Men’s Employment Tenure Act, 330 ILCS 60/1 et seq.
2 38 U.S.C. § 4301; 330 ILCS 60/3.
3 38 U.S.C. § 4303(16); 330 ILCS 60/3.
4 38 U.S.C. § 4312(d)(1)(C).
5 Id.; 330 ILCS 60/7.
6 38 U.S.C. § 4312(a)(1).
8 38 U.S.C. § 4312(a)(1).
10 38 U.S.C. § 4312(b).
11 38 U.S.C. § 4304.
13 38 U.S.C. § 4312(e)(1)(A).
15 38 U.S.C. § 4312(e)(1)(D).
16 330 ILCS 60/4.
17 38 U.S.C. § 4302(a).
18 38 U.S.C. § 4312(a), (c).
19 Adam Forman, Kimberly Collins, and Brian Pezza, The Uniformed Services Employment and Reemployment Rights Act of 1994, Corporate Counsel, A11-A12 (December 2001)
20 38 U.S.C. § 4316(d).
21 Id.; See Graham v. Hall-McMillen Co., 925 F. Supp. 437 (N.D. Miss. 1996).
22 29 C.F.R. § 541.118(a)(4).
23 38 U.S.C. §4316(b)(1)B.
24 38 U.S.C. § 4316(a).
26 38 U.S.C. § 4303(12).
27 38 U.S.C. § 4316(b)(1)(B).
28 38 U.S.C. § 4317(a)(1).
29 38 U.S.C. § 4317(a)(2).
32 38 U.S.C. § 4318(a)(2)(A).
33 38 U.S.C. § 4318(b)(1).
34 38 U.S.C. § 4318(b)(2).
35 38 U.S.C. § 4312(h).
36 The U.S. Department of Labor Veterans Employment and Training Service, A Non-Technical Resource Guide to the Uniformed Services and Reemployment Rights Act (USERRA), 6 (February 2001).
37 38 U.S.C. § 4313(a)(1).
38 38 U.S.C. § 4313(a)(4).
39 38 U.S.C. § 4313(a)(2).
40 38 U.S.C. § 4313(a)(2)(A).
41 38 U.S.C. § 4313(a)(4).
42 The U.S. Department of Labor Veterans Employment and Training Service, A Non-Technical Resource Guide to the Uniformed Services and Reemployment Rights Act (USERRA), 7 (February 2001).
47 38 U.S.C. § 4316(c)(1).
48 38 U.S.C. § 4316(c)(2).
49 330 ILCS 60/5.
50 38 U.S.C. § 4302(a).
51 38 U.S.C. § 4311(a).
52 38 U.S.C. § 4311(c).
53 38 U.S.C. § 4323(a).
54 38 U.S.C. § 4323(d)(1)(A).
55 38 U.S.C. § 4323(d)(1)(B).
56 38 U.S.C. § 4323(d)(1)(C).
57 330 ILCS 60/6.
Joanna G. DuPriest practices in the law firm of Laner, Muchin, Dombrow, Becker, Levin and Tominberg, Ltd. Ms. DuPriest concentrates her practice in various areas of labor relations, including counseling her clients on day-to-day employee issues; drafting employment policies and handbooks; conducting supervisory training; and representing clients before the Department of Labor, the Equal Employment Opportunity Commission, and various state agencies. She received her J.D. degree from Temple University School of Law, cum laude, and her A.B. degree from Bryn Mawr College, magna cum laude.