Kilies and Simonton: Military leave and employee rights to reemployment

By Janelle Kilies and Anthony Simonton

Under federal and state law, Indiana employees may be entitled to a variety of protections, including various types of leave. Employers are likely familiar with the Family and Medical Leave Act, which entitles their employees to 12 weeks of leave following birth of a newborn, to care for an immediate family member and to treat a serious health condition. However, employers may not be as familiar with leave provided under the Uniform Services Employment and Reemployment Rights Act (USERRA). The act provides various protections to service members; most notably, the act requires employers to reemploy employees returning from military service. It is important to understand the basic requirements of the act, as failure to comply with them could expose an employer to claims for lost wages, lost benefits and attorney fees.

Employee eligibility

Under the act, employees are entitled to up to five years of military leave. Employers must reemploy returning employees who provide advance notice of the commencement and completion of any such leave.

The amount of notice required depends, in part, on the length of the employee’s military leave. For example, an employee whose service was less than 31 days must report back to her employer the day after her service ends. If any such employee’s service last between 30 to 180 days, she would have to apply for reemployment 14 days after the end of her service. For service greater than 180 days, notice must be provided within 90 days.

Nevertheless, persons who fail to report or reapply to work as required under the act do not automatically forfeit their right to reemployment; rather, they are simply subject to their employer’s policies pertaining to absence from scheduled work.

Employer obligations under the act

Once properly noticed, an employer must promptly reemploy the returning employee. For USERRA purposes, “prompt” reemployment means as soon as practicable under the circumstances. This usually means within two weeks of the employee’s notice but more time may be practicable following extended periods of military service (compared to a weekend).

The act also requires the employer to reemploy the returning employee in the position she would have been promoted to, but for her military service. This is referred to as the elevator position and includes the seniority, status and pay commensurate with continuous employment throughout the duration of the employee’s military leave. In assessing what would have happened had the employee remained continuously employed, an employer can consider opportunities for advancement, working conditions, job location, shifting assignments, rank, responsibility and geographic location.

To the extent the employee is unqualified for the escalator position, the employer must make a reasonable effort to train the employee. If the employee is still unable to perform the duties of the escalator role or returns having been disabled from military service, the employee may be reemployed in the position she previously occupied prior to military leave or in a position equivalent in seniority, status and pay.

Application of the escalator principle can result in adverse consequences. A returning employee may be reemployed in a higher or lower position, laid off or even terminated, depending on the circumstances of her return. The reemployment position could also involve transfer to another shift or location, more or less strenuous working conditions or changed opportunities for advancement. For example, an employer whose business experienced a downturn could find that the returning employee would have been laid off during her period of service; that the layoff would have continued after the date of reemployment; and, as a result, reinstate the returning employee to layoff status.

Additionally, the act does not provide an exception where an employer hired another employee to replace the returning employee during her military absence. The employer would still be required to provide reemployment to the returning employee, even if that reemployment might require the termination of the replacement employee.

Exceptions to the reemployment rule

In certain limited circumstances, an otherwise eligible employee is not entitled to reemployment. Under the act, an employer is not required to reemploy a person if the employee was dishonorably discharged or if the employer’s circumstances have changed such that reemployment is impossible or unreasonable. If, for example, a reduction in workforce occurred during the returning employee’s absence, she may not be entitled to reemployment. The act provides for further exception where reemployment of an unqualified or disabled employee would impose undue hardship on the employer. Finally, the act does not provide reemployment rights to independent contractors and persons whose employment was intended to be brief or nonrecurrent. It is the burden of the employer to prove the above exceptions apply.

The United States Department of Labor is responsible for investigating claims made under USERRA and enforcing the act. If an employer is found to have violated the act, the employer may be required to pay the employee lost wages and/or benefits as well as attorney fees and costs.

The application of USERRA is fact-sensitive and, if not followed, may have significant implications for an employer.•

• Janelle Kilies is a partner with Lewis Wagner who practices employment law and complex litigation. Anthony Simonton is an associate in Lewis Wagner’s complex litigation group. Opinions expressed are those of the authors.