Introduction

With military engagements in Afghanistan and Iraq, employers now more than ever must deal with employees’ commitments to the military. Under both federal and California law, servicemember employees – and their families – have broad protections and leave entitlements.

USERRA

The Uniform Services Employment and Reemployment Rights Act (“USERRA”) is a federal law that provides job-protection to employees who serve in the military. Under USERRA, an employee generally is entitled to up to five years of job-protected leave for military service. Servicemember employees engaged in active duty, certain training activities, and National Guard duty fall under USERRA. The law applies to all public and private employers, regardless of size.

During military leave, an employee is entitled to the same “rights and benefits” the employer provides other employees on other leaves of absence. USERRA defines “rights and benefits” broadly to include “any advantage, profit, privilege, gain, status, account, or interest (other than wages or salary for work performed) . . . .”

While on USERRA-protected leave, an employee may use vacation or other paid time off, but cannot be compelled to do so. An employee may also continue existing health care coverage for up to two years. Further, the employee’s military leave time counts toward eligibility for seniority-based benefits.

USERRA mandates that an employer reinstate an employee after military service if: (1) the employee or an appropriate military officer gives advance notice of the service; (2) the employee’s cumulative length of service from all previous absences does not exceed five years; and (3) the employee submits a timely application for reemployment. No notice is required, however, if it is “impossible or unreasonable” to do so, or due to “military necessity.” Also, the five-year cap may be extended under certain specific circumstances.

The time period for submission of a reemployment application depends on the employee’s length of service. In addition, an employee who is hospitalized or convalescing as a result of an illness or injury has up to two years to reapply.

Upon receiving an employee’s application for reemployment, an employer must “promptly” reemploy him or her. Under the “escalator principle,” an employer may be required to promote an employee to the position he or she would have been employed in without military service (or a position that is comparable in pay, status, and duties). Also, an employee returning from a military service obligation cannot be discharged, “except for cause,” within one year of a period of service lasting more than 180 days or within 180 days of a period of service lasting between 30 and 180 days.

There are some limited exceptions to an employer’s obligation to reinstate. If business circumstances have changed so as to make reemployment impossible, unreasonable, or an undue hardship, an employer does not have to reinstate an employee upon return from service. An employer also does not have to reinstate if the position the employee vacated was for a brief, nonrecurrent period and there was no reasonable expectation that the employment would continue indefinitely. The burden is on the employer to prove one of these exceptions applies.

USERRA also prohibits discrimination and retaliation against servicemember employees. An employer may not deny a servicemember “initial employment, reemployment, retention in employment, promotion, or any benefit of employment” on that basis of him or her performing military duties. An employer also may not take an action against a servicemember for exercising his or her rights under USERRA or against any employee for assisting in the enforcement of USERRA (e.g., by testifying or making a statement in connection with a USERRA proceeding). The employer carries the burden of proving that an employee’s military status or exercise of USERRA rights was not a “motivating factor” in its decision to take an action against an employee.

The Federal Family and Medical Leave Act

In 2008, President George W. Bush signed legislation expanding the Family Medical Leave Act (“FMLA”) to cover servicemember employees and their families. To use FMLA servicemember leave, the employee or his or her family member must meet the law’s eligibility standards by: (1) working for an employer with at least 50 employees; (2) working for that employer for a total of 12 months; (3) working at least 1,250 hours over the previous 12 months; and (4) working at a location where at least 50 employees are employed by the employer within 75 miles.

Under the FMLA, there are two types of military family leave entitlements. First, employers must grant unpaid caregiver leave to an employee who is a spouse, child, parent, or next of kin of a servicemember who is undergoing medical treatment for an injury or illness incurred in the line of duty. That employee may take up to 26 weeks of leave to care for his or her family member in a single 12-month period.

Second, a covered employer must grant an employee up to 12 weeks of unpaid leave for certain “qualifying exigencies” arising out of an employee’s spouse, child, or parent’s active military duty. Qualifying exigencies include leave for short notice deployment; making or updating financial and legal arrangements; and spending time with a servicemember who is on short-term rest and recuperation leave. Further, an employee and employer may agree on a qualifying exigency. Like other types of FMLA leave, military-related leave is subject to a number of notice and certification requirements.

Job Protections and Leave under California Law

California law provides additional job protections and leave to employees in the military and their families. Section 394 of the Military and Veterans Code prohibits discrimination against servicemembers: “No member of the military forces shall be prejudiced or injured by any . . . employer . . . with respect to that member’s employment, position or status or be denied or disqualified for employment by virtue of membership or service in the military forces of this state or of the United States.”

In addition, Military and Veterans Code Section 394.5 provides for up to 17 days of unpaid leave for servicemembers who are engaged in military training activities. Furthermore, Section 395.10 requires employers with more than 25 employees to allow spouses and domestic partners of servicemembers on leave from duty in war zones to take up to 10 days of leave.

Case Studies: Staub v. Proctor Hospital and Serricchio v. Wachovia Securities, LLC

Two recent cases illustrate the importance of complying with laws meant to protect servicemember employees.

In Staub v. Proctor Hospital, Vincent Staub was a member of the Army Reserves. As a civilian, he worked as an angiography technician for Proctor Hospital. His supervisors were hostile to his military obligations. For example, one supervisor scheduled Staub for additional shifts without notice so Staub could “pay back the department for everyone else having to bend over backwards to cover his schedule for the Reserves.”

The hospital terminated Staub’s employment for poor performance. An HR executive reviewed Staub’s file and approved his termination. Staub later sued under USERRA.

The case eventually made it to up to the United States Supreme Court. The Court agreed with the jury that Staub’s termination was motivated by his supervisors’ hostility toward his military service. The Court concluded that Staub’s supervisors intended for him to be fired. Despite the HR executive’s independent investigation, the supervisors’ actions influenced her decision. This influence was sufficient to support a finding that Proctor violated USERRA by discharging Staub.

The Second Circuit Court of Appeals recently addressed USERRA’s “escalator principle.” In Serricchio v. Wachovia Securities, LLC, Michael Serricchio worked for Wachovia Securities, LLC as a financial advisor. His compensation was partially based on commissions. He was a member of the Air Force Reserve and was called to active duty following September 11, 2001.

After serving for 11 months, Serricchio requested reemployment with Wachovia. Wachovia waited four months to reemploy Serricchio and offered him a position with compensation and commission rates comparable to those he had prior to his deployment. However, Wachovia did not account for his sizable pre-deployment book of business, which resulted in him earning fewer commissions than if he not taken the leave.

Serrichio sued under USERRA. After a trial jury found that Wachovia violated USERRA, Wachovia appealed. The court found that Wachovia did not “promptly” reemploy Serricchio. Its four-month delay was significantly longer than the two-week general requirement set forth in the USERRA regulations.

In addition, Wachovia violated USERRA by not reemploying Serrichio in a manner that would result in comparable commissions and only providing him with a limited number of small accounts.

Tips for Employers

Employers should ensure that leave policies include protections for employees who take leave related to military service. Managers also must understand the unique aspects of protected military leave, particularly the escalator principle. Employers must train managers and supervisors to understand that members of our military are protected from unlawful discrimination and retaliation. Any employer with concerns regarding its obligations to servicemember employees and their families should consult with experienced employment counsel.

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