By Steve Collins steve@bcnattorneys.us
After the vicious, unprecedented, criminal attack on the United States on September 11, 2001, employees with more frequency are being called to active military service. Employees called to active military service have certain re-employment and employment benefit rights of which employers should be aware.
The “Uniform Services Employment and Re-Employment Rights Act of 1994,” 38 U.S.C. § 4301, et seq., represents Congress’ recognition of the public policy which encourages service in the military by eliminating or minimizing disadvantages to the individual’s civilian career which might otherwise result from absence from work due to military service.
The Act seeks to promote this public policy by prohibiting employers from discriminating against individuals because of past, present of future membership in the uniform service and by providing employees with certain re-employment rights and rights to the retention of benefits during their absence from work.
The Act covers persons serving in the “uniform services,” which include all of the federal armed forces and armed forces reserves. Additionally, the federal Act provides protection to persons serving “full-time” in the National Guard when the National Guard is federalized.
An individual called into active military service is to be “deemed to be on furlough or leave of absence while performing such service.” 38 U.S.C. § 4316(b)(1)(A). While on such “furlough or leave of absence,” the individual is to receive all rights and benefits which a similarly situated employee would receive under the employer’s “contract, agreement, policy, practice or plan in effect at the commencement of such service.” 38 U.S.C. § 4316(b)(1)(B).
In other words, the individual in military service is to be treated as any other employee on a company-recognized leave would be if on any other kind of leave other than military service. For instance, the statute seems to indicate that the individual is to retain all benefits which would be provided to other individuals employed with the employer who are on recognized leave but not leave to serve in the military.
Rights to health insurance are specifically addressed by the statute. The employer’s health insurance plan is to provide that an individual serving in the military may elect to continue coverage. In such circumstances, the employer may require the individual to pay the required premium but “not more than 102% of the full premium under the plan.” The period of extended medical coverage is the lesser of 18 months from the beginning of the leave from military service or the day after the day on which the individual’s re-employment rights ended or if coverage under the plan ends at the 18 month period and the individual is rehired under the provisions of the federal Act, then the plan may not impose a waiting period for pre-existing condition exclusion with the one exception of illnesses and injuries which are determined by the Secretary of Veteran’s Affairs to have occurred as a result of the military service which may be excluded.
The Act also specifically addresses employee pension benefit plans at 38 U.S.C. § 4318. In substance, this section of the Act seems to provide that upon return from military service, the individual’s pension plan rights concerning vesting and length of service as a factor of contribution be as if the person’s employment had been continuous during the time of military service.
A major feature of the federal Act is the right of persons who have served in the uniformed services to have re-employment rights. To trigger these re-employment rights, the employee must give advanced written or verbal notice of the upcoming service. There is no prescribed period for giving the notice and the notice is excused if the interest of national security or military security prohibit the giving of such notice or where the circumstances requiring the call to active duty are such that it is impractical for the employee to give notice.
The employee must reapply within certain periods of time which change depending upon how long their active service encompassed. If the individual’s length of service is less that 31 days then they must seek re-employment on the first full calendar day after the completion of the service with an additional allowance of eight hours for the individual to return to their residence, “or as soon as possible after the expiration of the eight hour period if reporting within the eight hour period is unreasonable or impossible” under the circumstances.
If the length of service was more than 31 days but less than 181 days, then the individual must seek re-employment not later than 14 days after the completion of the military service unless compliance with that time period would be impossible or unreasonable under the circumstances, in which case the individual must seek re-employment on the first day that application becomes “possible.”
If the length of service is more than 180 days then the individual must seek re-employment not later than 90 days after the completion of the period of service, with provisions for an extension of time under unusual circumstances.
Generally, the individual must be returned to the position that they held prior to their military service. In returning the person to the position which they previously held, the individual is to be restored to the seniority, status and pay which they would have had if no interruption of work had resulted from military service. If the individual has sustained a disability, injury or illness while in the military, then they are to be re-employed in a position of equivalent seniority status and pay in a job for which the person is qualified to perform or would be qualified to perform with a reasonable accommodation.
Tennessee also has an Act which covers employees serving in the Tennessee National Guard. The Act is codified at Tenn. Code Ann. § 58-1-604 and states as follows:
Discrimination; employment
It is a Class E felony for any person, firm or corporation to refuse employment to any person for the sole reason that he is a member of the Tennessee National Guard or to terminate the employment of any such person for such reason or because of absence from his place of employment while attending any prescribed drill, including annual field training.
In Tennessee a Class E felony is punishable by a prison term of not less than one year nor more than six years and a fine not to exceed $3,000.00.
Employees have successfully brought common law retaliatory discharge lawsuits based upon similar statutes. By the existence of such a statute as the Tennessee statute above quoted, courts have found that there is an announced public policy to protect those serving in the National Guard. The existence of this express public policy may also give rise to a common law lawsuit for damages for violation of the statute. Courts might construe the actual statute itself to give a private right of action in favor of an employee discharged or constructively discharged or discriminated against in other terms and conditions and benefits of employment, under circumstances which violate Tenn. Code Ann. § 58-1-604.
During the foreseeable future while the United States of America defends itself and fights criminal and terroristic elements around the globe, employer will be faced with a multitude of questions concerning dealing with the special needs of employees who are called to military service. To assure compliance with applicable state and federal law and to support the efforts of our military, employer should confer with their companies’ counsel concerning the applicability of employment laws concerning individuals serving in the military services.