Reservists typically spend one weekend a month training with their reserve unit and two weeks during the summer on active duty. This usually has no impact on you as their employer. Since many people don't work weekends you may not even know they are on military duty. And if they choose to use their vacation to cover their summer training you may be unaware of it then too.
However, whether or not you are aware of it, these employees are covered by the Uniformed Services Employment and Reemployment Rights Act (USERRA). This law was signed on October 13, 1994 and applies to virtually all U.S. employers, regardless of size. USERRA covers all employees except those serving in positions where there is "no reasonable expectation that employment will continue indefinitely or for a significant period", such as summer interns.
Which Employees Are Covered?
The law applies to persons who perform duty, voluntarily or involuntarily, in the "uniformed services". The "uniformed services" includes:
- Army
- Navy
- Marine Corps
- Air Force
- Coast Guard
- Public Health Service commissioned corps
- the reserve component of each service
- Army National Guard (USERRA applies if on federal training or service)
- Air National Guard (USERRA applies if on federal training or service)
What Do I Have To Do For Covered Employees?
You need to have in place a company policy regarding military leave. It should address those provisions required by federal law (USERRA), any required by state law pertaining to National Guard service ordered by the Governor rather than the President, and any provisions the company chooses to include. Note that the federal law takes precedence. USERRA does not preempt state laws or company rules providing greater or additional rights, but it does preempt any laws or rules providing lesser rights or imposing additional eligibility criteria. Your company policy cannot include anything contrary to the provisions of USERRA.
Time Off
You must allow employees time off to attend military duty when they are required to do so. You cannot require an employee to apply for military leave because you have no right of refusal. Nor can you require the employee to reschedule drills or other training. However, if the employee's absence causes undue hardship for the business you can contact the commander of the employee's military unit to determine whether the duty can be rescheduled or performed by someone else.
Wages
You are not required to pay an employee who is on military leave. Many employers pay some or all of the difference between the employee's salary and their military pay for some period of time, but it is not required. The employee is consider to be on furlough or leave of absence.
What Do The Employees Have To Do For The Business?
Employees are required to notify their employer in advance of any absence for military duty. The notification may be either oral or written, but the time frame is not specifically spelled out in USERRA. An employee's failure to provide notice to their employer, except in a case where military necessity prevents it, could result in a denial for USERRA protection for them.
Typically employees in the Guard and Reserves notify their employer during the hiring process of their regularly scheduled drills and training. Notification of call-up for active duty in an emergency is more random. Reservists may be recalled to active duty on very short notice in wartime, in some cases less than a day or over the weekend. In these cases, prior notification to their employer, if it is even possible, may consist of leaving a voice mail for their boss explaining what happened.
Manage The Preparation
- Recognize that some of your employees have commitments to the military.
- Know that there are benefits to your company from their service, both in peace and in war.
- Develop and publish ahead of time a company policy on military leave of absence.
- Know how many, and which, employees are in the Guard or Reserves.
- Pay attention to world events to anticipate, as much as possible, when these employees may need to leave.
- Have contingency plans in place that cover whether or not to hire a replacement and how to do so on short notice if needed.
- Cross-train other employees, if possible, in the duties of the employees who may be called up.
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