The Journal of The DuPage County Bar Association

Back Issues > Vol. 22 (2009-10)

USERRA Is Not FMLA
By Lisa M. Stauff

There has been no shortage of articles across the popular and professional spectrum that describe the basic contours of Uniformed Services Employment and Reemployment Rights Act ("USERRA").1 For employers familiar with the Family and Medical Leave Act ("FMLA")2, USERRA no doubt seems like FMLA for military employees.

But USERRA is not FMLA, and conflating the two is dangerous. FMLA may provide employees a right to medical leave, but employers still have considerable control over the process. USERRA, on the other hand, denies employers many of these controls. Employers who do not understand this will be in for a rude awakening when their reservist—who is usually well-informed by the military about his or her workplace rights—insists that they do not have to provide orders or dates or explanations prior to going on leave.

From such an awakening it can be a short walk to disaster for everyone. An under-informed human resources manager thinks the reservist is getting away with something. The reservist, on the other hand, feels persecuted. Much of this disconnect could be avoided if employers understood: a) they are prohibited from demanding most of the most basic details about an employee’s upcoming military leave; b) that military procedures and policies reflect national security issues, not workplace rights or corporate autonomy; c) that "military duty" encompasses more than going to war; and d) that USERRA differs from FMLA in other non-obvious ways.

Notice is not much notice

FMLA gives employers the power to approve a leave of absence, but employers have no such power under USERRA. Service members who will be leaving their civilian jobs for military duty need only inform their employers of the upcoming leave.3 Employees do not seek approval for the leave, they must only tell the employer that they are going.4 USERRA does suggest that a service member give 30 days notice, but only where practicable.5 The act of informing the employer could be as minimal as leaving a message on the company voicemail, or sending an email to a supervisor; the employer cannot create and enforce a company procedure for giving notice of upcoming leave.6 The service member does not have to say where they are going, what they will be doing, or how long they will be gone. The service member does not have to present orders or any documentation before they go on duty.7

Contrast this to FMLA, where an employer can specify a paperwork process that must be followed in order to qualify for FMLA leave.8 The employer is also entitled to an explanation of the medical problem that is necessitating the leave, and is entitled to get information from an employee’s doctor before approving the leave.9 If the employer does not get the information it seeks it can disapprove the leave and fire an employee for not providing information.10

For human resources managers who expect to receive proof that a person will be absent for the reasons he says he is, USERRA’s relatively loose requirements are frustrating. This is where context and education are critical.

National security concerns

FMLA is about balancing the medical needs of one individual with the business operations of one employer. USERRA is about national security. Employers are not entitled to detailed information about upcoming training or deployments because often that information cannot be shared with the public. Military families are taught early on about ‘operational security,’ or "OPSEC" in military parlance.11 This is the idea that seemingly benign bits of information about a service member’s schedule can be pieced together by an adversary to reveal classified information.12 Family members are instructed to watch what they say about when their service member will be coming and going from duty, or what they will be doing when on drill, and family members are told that there will be occasions where their service member cannot tell them when or where they going with their unit.13 This is standard operating procedure throughout the military, and is not restricted to service members engaged in covert operations.

Employers are never in the loop for information subject to OPSEC protections. Sometimes an employer will be given information about what the reservist will be doing on an upcoming military absence, other times, it will not. This means that a reservist may not be able to report to his employer seemingly mundane information such as the exact time that the reservist has to be at the drill center to get on a bus with his unit for the long drive to Fort McCoy for a long weekend of training. There are eight pieces of information in that last sentence that could be subject to OPSEC protections, depending on the instructions given to the reservist by his or her command for that specific drill weekend.14

It is critical that employers understand that they have limited entitlement to information before a military leave because of national security concerns, not because USERRA is an overly-generous employee-friendly law. Employers must be educated to not take their reservist’s vague responses about upcoming military duty—particularly when the reservist told the employer everything about the last drill—as evidence that the reservist is lying about his or her military schedule.

What is military duty?

Another disconnect between employers and USERRA occurs over what type of activity qualifies as military duty. The short answer: everything. No rational employer will dispute that going to war is military duty. But what about training? Taking a course at military base? Getting a physical? Going to Family Readiness seminars?

All of these activities are covered absences for military duty under USERRA.15 Why? Because they are never optional for the reservist, and these activities are essential to a unit’s completion of its mission. Reservists must get certain physicals and examinations before deploying, and throughout the course of their regular reserve service. Training sessions will be required, as will attendance in military schools. Training events are tightly scheduled, and cannot be pushed off for a time better suited to an employer (or the reservist, for that matter). Reservists ramping up for deployment are not invited to attend Family Readiness seminars with their spouses, they are required to attend. These seminars cannot be made up later.

Employers familiar with FMLA are used to being able to decide if an employee’s stated reason for medical leave qualifies that employee for FMLA protection, therefore, employers under the impression that USERRA is FMLA for military service may think that they can approve or deny military leave based upon the reason for the leave. And to be fair, USERRA itself may contribute to an employer’s belief that an employer has some say over the timing of a reservist’s absence. USERRA’s regulations note that "the employer is permitted to bring its concerns of over the timing, frequency , or duration of the employee’s service to the attention of the appropriate military authority," and that "military authorities are required to consider requests from employer of [reservists] to adjust scheduled absences from civilian employment to perform services."16

This language is misleading, and may cause more harm than good if employers believe that they have a genuine shot at changing a reserve unit’s schedule to better accommodate their needs. They don’t. Employers must understand that while this is language sounds accommodating, it is entirely toothless. An employer who questions every leave notice and who repeatedly asks a reservist to "get out of [duty]" because of inconvenience to the employer is going to cause a reservist endless stress and fear for his or her job, and the employer will ultimately find itself in court.17

Overall, employers do not get to determine whether the stated reason for an absence is USERRA-eligible in the same way they can under FMLA. And to the limited extent employers are allowed to review the type of activity a reservist claims is military duty, this can only be done after the reservist takes the leave and returns to work.

Other important distinctions

USERRA is more employee-friendly than FMLA in many other ways that employers may not anticipate. Where FMLA applies to employers employing more than 50 employees, USERRA employers need have only one employee.18 FMLA requires employers to grant leave to employees who have worked one year and 1,250 hours, USERRA kicks in on an employee’s first day of work.19 FMLA allows only twelve weeks of leave, USERRA allows five years of leave.20 FMLA exempts key employees from its protections; USERRA exempts no one.21

USERRA does align with FMLA when it comes to healthcare coverage during leave. Like FMLA, USERRA requires that the employer continue coverage so long as the employee pays some or all of the premium. Reservists who do not make their payments can have their health insurance terminated.

But even in this area there are differences. As to the cost of coverage for employees, FMLA is actually more generous. Employees on FMLA leave need only pay the employees’ share of the premium for the duration of their leave.22 Under USERRA, this is true only for military service lasting less than 30 days.23 Reservists serving 31 or more days can be required to pay up to 102% of the full premium to keep their health insurance.24

USERRA has another surprising feature unlike any other employment law that can catch employers off-guard: it turns at-will employees into just-cause employees. Reservists who are on active duty for over 180 days can be fired only for cause for one year after they return to work.25 This is not the same as the anti-retaliation provision, which forbids adverse employment actions in retaliation for availing oneself of USERRA protections.26 This is pure just-cause employment, in which the employer must show that the returned reservist deserved to be fired.27

Conclusion

There is a lot of misunderstanding about USERRA stemming from a widespread belief that USERRA and FMLA are functionally the same. This mistaken view can lead to employers placing demands on their reservists that USERRA forbids, which in turn leads to employer liability for USERRA violations. Employers who are better informed about reserve duty and military protocols can more fully comply with the law and offer more nuanced support to their reservist-employees.

1 38 U.S.C. § 4301 et seq.

2 29 U.S.C. § 2601 et seq.

3 20 C.F.R. §§ 1002.5(g) and 1002.85.

4 20 C.F.R. § 1002.87.

5 20 C.F.R. § 1002.85(d).

6 20 C.F.R. § 1002.85(c).

7 It is only after a service member returns from leave exceeding 31 days that an employer can demand proof to verify the military leave, and even then, the military has the final word on what information the employer must accept. 20 C.F.R. Pts. 1002.121 and 1002.123(b).

8 29 C.F.R. § 825.305

9 29 C.F.R. § 825.307.

10 29 C.F.R. § 825.313.

11 Sea Legs: A Handbook for Navy Life and Services, Family Readiness Programs, Commander Navy Installations Command, pp. 13-14; see also "You Should Keep All to Yourself," Capt. Bruce Hill, Jr., Alamo Wing, Vol. 5 No. 4, April 2006, p. 5,.

12 Id. ("OPSEC is an analytical process used to deny adversaries pieces of the information puzzle that, while unclassified, are still valuable. Effective OPSEC minimizes the risk that critical information might inadvertently be given away.")

13 Id. ("Do not discuss classified or sensitive information in public areas, such as the Navy Exchange, commissary, restrooms, library, etc....Predictable behavior, casual conversations, discarded documents and routine acquisitions can all be indicators associated with planning processes or operations, and indicators can give away valuable information about an organization’s missions or activities.")

14 For those of you keeping score at home, the eight protected bits of information are underlined: "…the exact time that he has to be at the drill center to get on a bus with his unit for the long drive to Fort McCoy for a long weekend of training."

15 20 C.F.R. §§ 1002.5(l) and (o), 1002.54-61.

16 20 C.F.R. § 1002.104.

17 Gillie-Harp v. Cardinal Health, Inc., 249 F. Supp. 2d 1113, 1120 (W.D. Wisc. 2003).

18 29 C.F.R. § 825.104; 20 C.F.R. § 1002.5(d)(1).

19 29 U.S.C. §2611(2)(A); 20 C.F.R. § 1002.5(c).

20 29 U.S.C. §2612(a)(1); 20 C.F.R. § 1002.99.

21 29 C.F.R. §825.216(b); 20 C.F.R. § 1002.43.

22 29 C.F.R. § 825.210.

23 20 C.F.R. § 1002.166(a).

24 20 C.F.R. § 1002.166(b).

25 20 C.F.R. § 1002.247(b). Employees who are on active duty for 30-180 days cannot be fired at will for six months after returning to work. 20 C.F.R. §1002.247(a).

26 38 U.S.C. § 4311(b).

27 20 C.F.R. § 1002.248.

Lisa M. Stauff is a solo practitioner from Chicago focusing on plaintiffs’-side employment law. She is a member of the Chicago Bar Association, the Illinois State Bar Association, and the Illinois chapter of the National Employment Lawyers Association. In 2005, Ms. Stauff testified before Illinois House and Senate committees in support of the Illinois Family Military Leave Act, 820 ILCS 151/1 et seq, enacted August 15, 2005. Ms. Stauff received her A.B. from the University of Chicago, and her J.D. from Chicago-Kent College of Law, graduating with a certificate from Chicago-Kent’s Institute for Law and the Workplace.

 
 
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