Michigan Concrete Association - When Reservists are Activated

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When Reservists are Activated

Employer’s Responsibilities when Reservists are Activated

by Toni Talbot, SPHR

Many employees are citizen soldiers, working full-time at your company while serving the country as a reservist. Now, some of these citizen soldiers are being called up for active duty and you, as an employer, must know how to handle these employees’ leaves. The main issue of compliance involves the Uniformed Services Employment and Reemployment Rights Act (USERRA). This relatively new federal statue, signed into law in 1994, covers anyone in the uniformed services, whether this service is voluntarily or involuntarily. It covers the employee rather than the employer, so it covers every employer no matter how small.

I’ll review the USERRA requirements, but first I would like to address some things you may want to consider when you are faced with an employee who comes to you with orders for active duty.

It is important to show support and appreciation for this employee. I am confident that although they willingly take on this duty, they do so with uncertainty and concern for their family.

Your company should address the needs of your impacted employees and their families. This includes the employees leaving for active duty as well as the employees remaining home. Some areas you and your company need to consider include: ·

Distribution of work ·
Replacing the position ·
Notification of other employees ·
Notification of customers ·
Policies which go beyond USERRA - such as the continuation of benefits for the family or continuing a contribution to the pension plan.

Consider honoring these employees, showing them you and your staff appreciate the sacrifice they are making under these difficult times. Show them that you care about them and their family. While they are gone, take the time to contact their family members and to let them know you are concerned for them. This is not only good business, but good citizenship.

Now let’s go through aspects of the employer’s responsibilities under this act. It is important for you to let your employees know of their rights under the Uniformed Services Employment and Reemployment Rights Act.

1. REINSTATEMENT RIGHTS
When an employee is called to active duty they retain the right to reinstatement to their previous civilian position upon their return from military service as long as they return within five years from the onset of the military service. This means that an employer has the responsibility to “promptly” reinstate an employee. The Act differentiates the position the employee must be returned to based upon the length of his military service. It states employers must return honorably discharged individuals to jobs as follows:
“(Military) Service of 1 to 90 days: (a) in the job the person would have held had he or she remained continuously employed (possibly a promoted position), so long as the person is qualified for the job or can become qualified after reasonable efforts by the employer, or (b) if the person cannot become qualified, (reinstate the employee) in the position the person was employed on the date of the commencement of military service.”
In other words, reinstate the employee to either the same or a promoted position the individual would have received if he remained working.

For (Military) service longer than 91 days, “(a) same as for service of 1 to 90 days, or a position of like seniority, status and pay, so long as he or she is qualified, or (b) if the person cannot become qualified, in the position the person was employed on the date of the commencement of the military service or which nearly approximates that position.” In other words, either the same position, a promoted position, or a similar position with like pay and benefits. Make no mistake, you must reemploy this individual…and you should. Even if it means others will lose their job in order for you to bring the service man or woman back.

2. RETENTION OF BENEFITS
Health Benefits
For leaves not exceeding 30 days, the employer must retain benefits and cannot charge the employee any more than what would have been the normal employee contribution. For leaves in excess of 30 days, employers are required to provide COBRA like continuation of benefits for up to 18 months and can require employees to pay up to 102% of the full premium for coverage. This applies to all employers, even those not normally required to comply with COBRA.

When an employee is reinstated, benefits must be restored immediately, without any exclusions or waiting periods except for service related injuries or illnesses.

Pension Benefits
Upon returning from military leave, employees must be made whole regarding pension benefits. They must be allowed to contribute to the pension plan any amount that would have been contributed if the employee had been working. Employers are not required to contribute to the employee’s pension, but some employers may choose to continue this contribution.

Benefits related to Service Credit
Any benefit that would vary based upon an employees years of service, i.e. bonus, time-off, etc., must be reinstated at the point they would be if the employee had continued working. In other words, if an employee has 3 years of service with the company, is called on active duty and is gone for a year, when they return he will have 4 years of service and receive all the benefits that 4 years of service provides.

3. EMPLOYMENT RELATIONSHIP
For employers that have an at-will relationship with their employees, veterans returning to work are placed in their position under the employment status of “just-cause” rather than “at-will.” This just cause status will last for a period of one year if the service period was for more than 180 days or for six months if the service period was for more than 30 days.

During this difficult time for our country, it is important to help those called for active duty feel a sense of security for their careers and their families. Let them know you look forward to their return and that they will find their job waiting for them upon their return. We all have been impacted by this tragedy, anything we can do to help our servicemen know that we are behind them will be beneficial.

*Toni C. Talbot, SPHR is the MCA Human Resources consultant. Ms. Talbot provides one hour of free consultation per month to any MCA member company. You can contact her at (517)655-3959 or via e-mail at tctalbot@voyager.net.