PUBLIC EMPLOYEE/MILITARY RESERVIST WHAT YOU NEED TO KNOW WHEN AN EMPLOYEE IS RECALLED TO ACTIVE DUTY

Transcription

1 PUBLIC EMPLOYEE/MILITARY RESERVIST WHAT YOU NEED TO KNOW WHEN AN EMPLOYEE IS RECALLED TO ACTIVE DUTY By Martin A. Grover* Assistant City Attorney City of Vista City employees who are military reservists or who enlist or receive a commission as an officer in the military are protected by both federal and state law from discrimination. If as a result of their military service, they are absent from their city position entitled to reemployment and other benefits provided they meet certain requirements. The purpose of this paper is to give a brief overview of the applicable laws that apply to such employment relationships and to provide guidance to assist municipalities in meeting their statutory obligations and discuss the legal ramifications in the event an agency violates either the state or federal laws. I. MILITARY SERVICE AND PUBLIC EMPLOYMENT STATE LAWS State law prohibits any person from discriminating against a member of the U.S. military or the National Guard. 1 A violation of this statue constitutes a misdemeanor. 2 City employees who are members of the military reserves are entitled to a temporary leave of absence from their public employer when ordered for purposes of active military training, inactive duty training and the like provided the absence does not exceed 180 days 3. One of the challenges faced by anyone called upon to analyze these statutes is to understand the various military terms related to active duty: initial active duty for training 4, active duty 5, active duty for training 6, and inactive duty training 7. Fortunately, the DOD Dictionary of Military Terms can be found on-line at * Also holds the rank of Captain, Judge Advocate General s Corps, United States Navy. Civilian and military titles shown for purposes of identification only. The views expressed are those of the author, and not necessarily the views of the City of Vista, the Departments of the Navy and Defense, or the U.S. government. 1 California Military & Veterans ( Mil. & Vet. ) Code Id. 3 Mil. & Vet. Code 395(a). 4 Initial Active Duty for Training is defined by the Department of Defense ( DoD ) as basic military training and technical skill training required for all accessions and shall not be less than 12 weeks. This is commonly referred to as Boot Camp. 5 Active Duty is defined by DoD as full-time active military service in the United States. This includes members of the Reserve Components serving on active duty or full-time training duty, but does not include full-time National Guard duty. 6 Active Duty for Training is defined by DoD as a tour of active duty which is used for training members of the Reserve Components to provided trained units and qualified persons to fill the needs of the Armed Forces in time of war or national emergency and such other times as the national security requires. The member is under orders that provide for return to non-active status when the period of active duty for training is completed. Commonly referred to as Annual Training. 7 Inactive Duty Training is defined by DoD as authorized training performed by a member of a Reserve Component not on active duty or active duty for training and consisting of regularly scheduled unit training assemblies. This is commonly referred to as Weekend Drills. 1

2 A municipality is not required to, but may provide paid leave for the city employee s temporary leave of absence. 8 A city employee has an absolute right to be restored to the former office position and status he formerly held upon the termination of his temporary military duty for active or inactive training. 9 This right also applies to charter cities. 10 If the position has been abolished or eliminated, the city employee is entitled to be employed in a position of like seniority, status and pay if a position exists, or if no position exists, the employee has the same rights and privileges that he would have had if he had occupied the position when it ceased to exist and he had not taken temporary military leave of absence. 11 A city employee, who prior to beginning his temporary leave of absence was employed with the city for not less than one year, is entitled to the same vacation benefits, sick leave and holiday privileges and the same rights to promotion, continuance in office, employment, reappointment to office or reemployment that the employee would have enjoyed had he not been absent on temporary military leave. 12 If the city employee did not complete his probationary period, he must complete his probation upon his return. 13 A city employee is entitled to receive his salary for the first 30 days while on either a temporary military leave of absence which is a leave of absence not more than 180 calendar days, or simply a leave of absence, which is a leave of absence of more than 180 calendar days. In either case, the city employee must have been previously employed by the municipality for more than one year. 14 Such payment may not exceed 30 days in any fiscal year, however, a municipality may pay an employee during a period of inactive duty training. 15 State law also entitles city employees and elected officials who either leave their position during the time of war or a national emergency to be reinstated to their position upon their termination of military service, provided their discharge was under conditions other than dishonorable and their term of office has not expired. 16 Further, the employee shall have all of the rights and privileges he would have enjoyed had he not be absent, except sick leave, vacation or salary for the period during he was serving in the military. 17 If the office or position has been abolished or no longer exists, the employee is entitled to be reemployed in a position of like seniority, status and pay or to a 8 Mil. & Vet. Code 395(b). 9 Mil. & Vet. Code 395(c). 10 Murdy v. City of Los Angeles, 201 Cal. App. 2d 468 (2 nd Dist ). 11 Mil. & Vet. Code 395(c). 12 Mil. & Vet. Code 395(d). In calculating the one year of service with the municipality, all service in recognized military service shall be counted as service with the municipality. For example, if the city employee served four years in the US Army before being employed with the City, that four year period would count toward the qualifying period for benefits 13 Id. 14 Mil. & Vet. Code Id. 16 Mil. & Vet. Code 395.1(a). 17 Mil. & Vet. Code 395.1(b). 2

3 comparable vacant position for which his is qualified. 18 For one year after his return, the employee, other than a probationary employee, may only be discharged for cause. 19 A city employee or elected official has similar rights even if he resigns his position whether or not a national emergency exists. 20 Further, state law allows any city officer, elected or otherwise, who leaves the service of any city in order to enter upon active service with the armed forces of the United States to be reinstated and restored to his office upon his discharge or release from such active service with the armed forces; provided, such discharge or release is prior to the expiration of the term for which he has been elected or appointed. 21 The position vacated by the official shall not be considered vacant, but the city council may appoint an officer to temporarily replace any such officer and hold the office until the expiration of the term or until the officer returns. 22 Care should be taken when addressing the reemployment rights and benefits when the city employee is a member of the National Guard. Because the Governor has the authority to call out the National Guard in a state of emergency, and the President may call up the National Guard for a national emergency, the rights and benefits to National Guard members differs slightly depending on whether the recall to active duty was for state or national purposes. For example, a city employee, regardless of his length of service with the city, who is a member of the California National Guard and who is called into military service by the Governor during a state of extreme emergency is entitled to return to his former position upon his release at the termination of the emergency. 23 The employee is also entitled to his full salary and not lose any vacation or holiday privileges. 24 While the protection and benefits under state law are generous, they may not be as generous as the protections and benefits under federal law which will be discussed below. In the event there is a conflict between the protections and benefits under state law and federal law, federal law shall prevail. Further, it should be noted that the benefits and protections under federal law are dependant upon the city employee meeting certain prerequisites. In some cases, the city employee may not qualify for reemployment under federal law, but may be entitled to reemployment under state law. For example, a city employee who is a member of the National Guard who is ordered to active duty by the Governor due to a state of extreme emergency, would not be entitled to reemployment under federal law, but would be entitled under state law. 18 Id. 19 Mil. & Vet. Code 395.1(c). 20 Mil. & Vet. Code Mil. & Vet. Code Id. 23 Mil. & Vet. Code Id. 3

4 II. MILITARY SERVICE AND PUBLIC EMPLOYMENT FEDERAL LAWS On October 13, 1994, President Clinton signed into law the Uniform Services Employment and Reemployment Rights Act ( USERRA ) (Title 38 U.S. Code, Chapter 43, Sections , Public Law ). Its purpose was to encourage services in the uniform services, to minimize disruption by providing for the prompt reemployment of those who have served, and to prohibit discrimination against those who service or have served. 38 U.S.C USERRA was a complete rewrite of the Veteran s Reemployment Rights law ( VRR ). Many of the court decisions interpreting VRR are applicable to interpreting USERRA. USERRA gives the Secretary of Labor authority to promulgate regulations about the application of USERRA to employers. 25 These regulations are published in the Code of Federal Regulations at 20 CFR Part A. USERRA S SCOPE USERRA applies to virtually all United States employers, 26 including Federal, state and local governments, and small private employers. You only need one employee to be covered. 27 It applies to all employees regardless of their position or status: Executive or management, temporary, probationary and at-will positions. Even laid-off employees are covered. It does not apply to independent contractors, but the label of the individual s position is not controlling. B. RELATIONSHIP TO OTHER LAWS OR AGREEMENTS USERRA does not preempt, supersede, nullify or diminish any Federal or state law, including any local ordinance, contract, agreement, policy, plan or practice that establishes a right or benefit that is more beneficial to, or is in addition to, a right or benefit provided for under USERRA. 28 For example, if a collective bargaining agreement or a local ordinance provides greater benefits to an employee than provided under USERRA, the provisions in the bargaining agreement or local ordinance would apply. On the other hand, USERRA supersedes any state law, including any local ordinance, contract, agreement, policy, plan or practice that reduces, limits, or eliminates in any manner any right or benefit provided by USERRA. 29 This prohibition would include any attempt to create additional prerequisites to the exercise of any rights or receipt of any benefits afforded under USERRA. 30 In a recent case, the United States Court of Appeal for the Sixth Circuit held that a local government s application of its return-to-work policy constituted an additional prerequisite to the right to U.S.C Religious institutions and Indian tribes are excluded from coverage. 27 Cole v. Swint, 961 F.2d 58 (5 th Cir. 1992). You should note that Cole predated the enactment of USERRA and was based on VRR. However, court decisions interpreting VRR may be used in interpreting USERRA U.S.C. 4302(a) U.S.C. 4302(b). 30 Id. 4

5 reemployment under USERRA. Petty v. Metropolitan Government of Nashville- Davidson County, 538 F.3d 431 (6 th Cir. 2008), involved a police officer, who was recalled to active duty for approximately 15 months for service in Operation Iraqi Freedom. The officer was required to comply with the department s return-to-work policy after his release from active duty and before he could be reinstated to his former position as a patrol sergeant. The return-to-work policy required the officer to update a personal history questionnaire, complete a medical examination, submit to a computer voice stress analysis, submit to a drug screening test and a debriefing with the Police Department psychologist. The Department applied the return-to-work policy on all officers who had been away from the Police Department for an extended period of time, regardless of the reason for their separation. The purpose of the return-to-work process was to ensure that every individual entrusted with the responsibility of being a police officer is still physically, emotionally, and temperamentally qualified to be a police officer after having being absent from the Department. The Court held applying such a policy to members of the armed forces returning from military duty was a violation of USERRA. 31 While there are no reported cases specifically relating to City Managers or inhouse City Attorneys, under USERRA they too would be entitled to reemployment following their military service if they met all of the qualifications for reemployment. It would not matter whether they were under an employment agreement. Nor would it matter whether the term of the employment agreement had expired. If the term of the employment agreement has not expired, the municipality would be required to reemploy the employee without question. On the other hand, if the employment contract had expired the court would look to the municipality s past practice and whether it s past practice was to renew the City Manager s and City Attorney s employment agreements. The burden of proof would be on the municipality to show that it did not routinely renew such agreements. Some municipalities contract for legal services with private law firms. Whether an attorney that is hired to serve as the City Attorney under such an arrangement would be covered by USERRA would depend on whether the attorney is an employee of the municipality. If he is an independent contractor and not an employee, USERRA does not apply. However, USERRA would apply if he is an employee of the firm. If he is a partner of the firm and the city attorney, he would not be protected by USERRA. C. USERRA PREREQUISITES The general rule is a city employee is not entitled to any of the rights granted under USERRA until he completes his military service and applies for reemployment. There are two exceptions to the rule which will be discussed below. But before the city employee can qualify for the rights granted under USERRA, the city employee must meet the following prerequisites: 1. He must have left his city position for the purpose of performing service in the uniformed services F.3d 431, 441(6 th Cir. 2008). 5

6 2. He must have given prior notice to his city employer. 3. The cumulative period or periods of absence from the municipality for performing military service must not have exceeded the five-year limit, although the period of absence may be longer in some cases. 4. He must have been released from the period of service without receiving a disqualifying discharge. 5. He must make a timely application for reemployment. 1. Previously Employed with the City In order for a city employee to be covered by USERRA, he must have held a job with the municipality prior to his absence for military service. The employment position need not be permanent for USERRA to apply. It also applies in those cases where the employee s position is either temporary or probationary. However, it does not apply when the employment position is one that was for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period. In such cases, the burden is upon the employer to prove the brief or nonrecurrent nature of the employment without a reasonable expectation of continuing indefinitely or for a significant period. 32 The courts have held that probationary and seasonal jobs are covered by USERRA as well. 2. Purpose of Absence to Perform Military Service The second prerequisite for a city employee to qualify for the rights granted under USERRA is that the individual must have left his city position for service in the uniform services. It should be noted that the individual need not be a current member of the National Guard or any other Armed Forces to qualify for protection under USERRA. A city employee who enlists or obtains a commission in one of the branches of the armed services while a city employee would qualify. Additionally, an individual who is going through the process of enlisting or seeking a commission would also be covered. For example, an individual may need to undergo a physical examination prior to his enlistment being approved. If he is required to take time off of work to obtain a physical, his employer would be obligated to allow him to do so under USERRA. 3. Prior Notice Under USERRA, the city employee must give his employer advance written or verbal notice of his leaving for military service, unless such notice is precluded by military necessity or, under all of the relevant circumstances, the giving of such notice is otherwise impossible or unreasonable. 33 The notice may be given by the employee or by an appropriate officer of the uniformed service in which the employee is joining on behalf of the employee, for example, his commanding officer. USERRA does not specify to whom the notice must be given, only that it be given to the employer. Therefore, a city employee could give verbal notice to his immediate supervisor to satisfy the prerequisite U.S.C. 4312(d)(1)(C) U.S.C. 4312(a)(1). 6

7 Except for short periods of absences, such as weekend drills or two weeks annual training, it is advisable that the city employee s department head meet with the city employee and document the meeting when an employee decides to give notice for extended periods of military service, such as when the individual is being recalled to active duty for six months or more. That documentation should be filed in the city employee s personnel file for future reference. City employees should be advised to put their notice in writing. The notice need only state that the city employee is leaving to perform military service, it need not include any expected date of return. However, there is no duty for the municipality to seek a notice from an employee who simply fails to show up for work or give no notice of his intention to resign. In such cases, it would be advisable for the Human Resources Department to investigate and document the reason for the employee s departure to determine the reason for leaving and whether any notice was given to the employee s immediate supervisor. In some rare cases, USERRA excuses the notice requirement for military necessity or where notice is otherwise impossible or unreasonable. An example might be where an entire elite military unit is recalled and mobilized for duty in Afghanistan and publicity of such mobilization might give the enemy valuable intelligence. In such cases, the employee may be ordered not to disclose the fact that he is being mobilized for operational security. Such cases are rare. USERRA does not specify the minimum period of advance notice the city employee must give his employer that he is leaving to serve in the armed forces. In most cases, the city employee will be given adequate warning to get his affairs in order in preparation for mobilization. However, due to exigent circumstances, it is possible that a city employee may be give word that his unit is mobilizing and he needs to report for duty within twenty-four hours. 4. Duration of Service The rights afforded a city employee under USERRA are available provided the period of time the employee is absent from his city job for military duties does not exceed five years in the aggregate. Not all absences are counted against the five year period. For example, if a city employee is involuntarily recalled to active duty, that period of time does not count against the five year period. Likewise, the weekend drills and the two weeks of active duty do not count against the five year period. Further, any military service the employee may have served prior to his employment with the city, would not count. For example, an employee who is hired by a city after serving six years with the Army and voluntarily requests orders to be recalled to active duty for twenty-four months, would be entitled to reemployment under USERRA. Only the twenty-four month period would apply, not the prior six years of military service. 7

8 5. Discharge Characterization Another requirement to the reemployment protections under USERRA is that the city employee must not have received a punitive discharge upon his release from active duty. All enlisted service members receive a discharge at their expiration of their enlistment agreement. However a punitive discharge may be issued prior to the termination of their agreement. There are only three punitive discharges: Dishonorable Discharge, Bad Conduct Discharge and Other-Than-Honorable Discharge. A service member may only receive a Dishonorable Discharge from a General Court-Martial, which is equivalent to a felony conviction. A Bad Conduct Discharge may be awarded at either a General or Special Court-Martial. An Other-Than-Honorable Discharge may be awarded as the result of an administrative board hearing. An administrative board hearing is the military s equivalent to a civil service board hearing. Officers who commit an offense will either receive a dismissal or may be dropped from the rolls. In either case, they would not qualify for the reemployment protections under USERRA. 6. Promptly Return Back to Work Lastly, the city employee seeking to be reemployed with his former employer, must report promptly back to work. Promptly reporting back to work depends on a number of factors, but primarily the length of time the employee was away for military service. If his absence from his city employment was less than 31 days, he must report at the start of the first full work period on the first day he is scheduled to work, after the completion of the period of service, in addition to the time reasonably required for safe transportation from the place of service, plus eight hours for rest after he gets home. For example, if the city of San Diego employee performs his two weeks of active duty in Washington, D.C. and he is released by his command at 4:30 P.M., he would be entitled the reasonable time to fly back to San Diego, plus an additional eight hours for rest. If the period of absence was more than 30 but less than 181 days, the city employee must apply for reemployment within 14 days after the date of release from the military. If the period of military service was for 181 days or more, the city employee must apply for reemployment within 90 days from the date of release. In some cases the period for applying for reemployment may be extended. For example, a city employee that was injured while on military duty and needs additional time to convalesce must apply for reemployment within a reasonable time. 8

9 D. MUNICIAPALITY S OBLIGATIONS UNDER USERRA If the city employee satisfies the five prerequisites above, he is entitled to the following: 1. Prompt reinstatement. 2. Seniority credit. 3. Pension credit. 4. Status. 5. Training or retraining. 6. Protection against discharge without cause. 1. Prompt Reinstatement Once the city employee returns from military service, the municipality must promptly reemploy him or her depending on the length of absence. 34 a. Absences Less than 91 Days If the absence for military service is less than 91 days, the employee is entitled to be reemployed into an appropriate position based on a number of factors. The position may be above, below or the same position that the employee held at the time he left for military service, depending on the facts. Under USERRA, the municipality must first consider whether the employee would have been entitled to a higher position with the city had he not been away performing military duties. The following scenario will help clarify this point. The City of Goodtime has a policy in place where new college graduates are hired as junior management analysts. After two years they are elevated to senior management analyst positions. Past experience shows that ninety percent of junior management analysts are promoted to senior management analyst positions. Bob Smith is a naval reservist and a junior management analyst for the City of Goodtime. Mr. Smith, two months before his second anniversary with the city, is recalled to active duty for ninety days. Upon Mr. Smith s return, the City would be required to reemploy Mr. Smith in senior management analyst position because that is the position he would have occupied had he not be absent for military service. If the elevated position required additional training in order for him to perform his duties, the City would have to make a reasonable effort to provide Mr. Smith with the additional training and only if Mr. Smith was unable to perform the duties of the senior management analyst after the training would the City then be relieved of the obligation to reemploy him at the senior management analyst position. If the employee is unable to perform the duties of the higher position, the municipality is required under USERRA to reemploy him in the position he held at the time he began his military service. In the example above, Mr. Smith would be entitled to be reemployed in the junior management analyst position U.S.C

10 However, there may be circumstances where the employee may only be entitled to reemployment at a lower position or no position whatsoever. If the City of Goodtime had a round of layoffs due to budget reasons and Mr. Smith s position was eliminated, Mr. Smith would not be entitled to reemployment. However, the municipality must be careful that the elimination of the position is not due to the fact that the employee is absent for military purposes. The municipality would have the burden to prove that Mr. Smith s position would have been eliminated had he not been absent. Additionally, if Mr. Smith s held a classified position and he had bumping rights, he would be entitled to exercise those rights upon his return. He would therefore not be entitled to the position he held prior to beginning his period of military service, but to a lower position. b. Absences More Than 90 Days If the period of absence is more than 90 days, the position the employee is entitled to hold with the city is slightly different. He is still entitled, as under an absence less than 91 days, to hold the position he would have held had he not been absent for military service, or in a position of like seniority, status and pay. USERRA assumes that an employee normally is promoted to higher positions and given greater responsibilities the longer he is with the employer. USERRA attempts to eliminate any penalty an employee would suffer as a result of performing his military service. In the case of a city employee who is absent for more than 90 days, the city is required to place the employee into a position that he would have held had he not been absent for military service or in a position of like seniority, status and pay. Here is how this issue might be resolved using the management analyst example from above. Mr. Smith is a junior management analyst in the City Manager s Office. Under the city s policy, if Mr. Smith performed well in that position, he could look forward to a senior management analyst position in the City Manager s Office after two years. This time, however, he is recalled for one hundred and eighty days, two months prior to his second anniversary. As in our first example, he would be entitled to a senior management analyst position in the City Manager s Office upon his return. The City might be able to reemploy Mr. Smith in another senior management analyst position with the City provided it had the same seniority, status and pay. However, it may be that a senior analyst position in the City Manager s Office might be considered a higher status, than a senior management analyst position in the Public Works Division based on their respective duties. Arguably, the City Manager s senior management analyst might involve greater interaction or contact with local citizens. Further, the City Manager s senior management analyst might look better on an individual s resume, than the Public Works senior management analyst. In such cases, reemploying the city employee into the Public Works senior management analyst position would not be a position of like seniority, status and pay and a violation of USERRA under the above example. As with a employee who is absent for less than 91 days, the city employee would have to establish that he is qualified to perform the duties of the higher office and be provided training by the City if necessary. If the employee could not perform the duties 10

11 after training, the city employee would be entitled to the position that he held at the time he began military service or a similar position of like seniority, status and pay. Further, such an employee might be placed at a lower position or denied reemployment if the City had reduced its workforce for budget reasons. Again, the City would have to justify its decision by showing that the employee would have resigned or discharged even if he had not been absent performing military services. There is one other exception to the prompt reinstatement requirement. If the city employee becomes disabled during military service or has an aggravation of a preexisting condition during military service and, who after reasonable efforts by the employer to accommodate the disability is not qualified due to such disability into the position if the continuous employment of such persons with the employer had not been interrupted by military service, he is entitled to be reemployed in any other position which is equivalent in seniority, status, and pay, the duties of which he is qualified to perform or would become qualified to perform with reasonable efforts by the city; or in a position which is nearest approximation to a position referred to above in terms of seniority, status and pay consistent with circumstances of the individual s case. A police officer who is blinded from an improvised explosive device during his military service in Iraq, will not be able to resume his duties as a police officer. The City will need to find another position that closely approximates his former position in terms of seniority, status and pay. If two or more city employees entitled to reemployment under USERRA in the same position of employment report for reemployment, the person who left the position first shall have the prior right to employment. For example, assume that an assistant city attorney left for three years of military service and a deputy city attorney moved up to the vacant assistant city attorney position. Then assume that the new assistant city attorney decided to obtain a commission in the Navy JAG Corps and left for two years and returned to his prior position as Assistant City Attorney. Subsequent to his return, the first assistant city attorney returns from his three year tour and requests to be reemployed. Under USERRA, the first city attorney would have the right to resume his position as the assistant city attorney. The second assistant city attorney would have the right to reemployment in any other position of employment which he would have been employed if the continuous employment had not been interrupted by military service or in a position that he was employed on the date his military service commenced depending on the length of his absence for military service. 35 Identifying that position will take some careful analysis by the city s legal counsel and its human resources department. 2. Seniority Credit If the city employee meets the eligibility requirements under USERRA, he is entitled to be treated, for seniority purposes, as if he has been continuously employed during the period of his absence. 36 USERRA does not create a system of seniority, it U.S.C 4313 (b) U.S.C

12 assumes one. An excellent example of this can be found in Allen v. U.S. Postal Service, 142 F.3d 1444(Fed. Cir 1998.) In Allen, the plaintiff was a tool and parts clerk and worked the night-shift for the USPS. He wanted to work the day shift, but none were available. In 1994 he was called to active duty for four months and during that time USPS created tool and parts clerk day position. Mr. Allen did not learn of the position until he returned. To be assigned to the position, an employee had to bid for it and it was determined by seniority. Upon his return, Mr. Allen requested a day position, but was denied. Mr. Allen appealed the matter to the Merit Systems Protection Board ( MSPB ) and MSPB ruled against him. He then appealed to the United States Court of Appeals for the Federal Circuit, which hears appeals from the MSPB. The Appellate Court ruled in favor of Mr. Allen and held he was entitled to be, for seniority purposes, as if he had been continuously employed during the period of his absence. While the city employee is absent performing military service, he is to be deemed to be on furlough or leave of absence and entitled to such other rights and benefits not determined by seniority as are generally provided by the municipality to other city employees having similar seniority, status, and pay who are on furlough or leave of absence under a contact, agreement, policy, practice, or plan in effect at the commencement of such absence or established after absence begins. These rights and benefits may be waived by the city employee if he knowingly provides written notice of intent not to return to the municipality after he is released from military service. The municipality has the burden of proving that a city employee knowingly provided clear written notice of intent not to return to his prior position and that the city employee was aware of the specific rights and benefits he is giving up. This seniority credit has also been called the escalator principle which came from a 1946 Supreme Court case in which the Court held: The returning veteran does not step back on the seniority escalator at the point he stepped off. He steps back on at the precise point he would have occupied had he kept his position his position continuously during [his military service.]. 37 While Fishgold predates the adoption of USERRA, its holding is incorporated into the federal law. However, if there is no system of seniority, the escalator principle does not apply. The escalator principle is a double-edge sword. Like a real escalator, the escalator principle can descend as well as ascend. As in these times where layoffs are becoming more and more common, a city employee who is covered by a collective bargaining agreement may not be protected from a layoff, if the municipality can establish that based on the employee s seniority, he would have been laid off during the time he was away, he would not be entitled to reemployment upon his return. On the other hand, if the city employee was in an at-will position at the time he left for military service and the layoffs were not based on seniority, the city employee would be entitled to reemployment, unless the municipality is able to show that the city employee would have been laid off even if he had not left for military service. For example, if the city decided to eliminate a department and all of the employees of that 37 Fishgold v. Sullivan Drydock & Repair Corp. 328 U.S. 275, (1946) 12

13 department were laid off, it would be safe to conclude the city employee on military duty would have been laid off as well. Lastly, not all promotions or other benefits are tied to seniority. For a benefit to qualify as a prerequisite of seniority, the Courts have devised a two-part test. First, the benefit must have been intended to be a reward for length of service, not a form of short term compensation. For example, the Supreme Court has held that vacation days are not a prerequisite of seniority. 38 Earned vacations days are not given for how long an employee has been employed at the city. On the other hand, the rate of vacation is usually a prerequisite of seniority. A municipality may have a set rate for earned vacation days for the first five years of employment, however, upon the anniversary of the sixth year, the rate increases. If during the city employee s period of absence for military service, his tenure with the city passes the trigger for qualifying for a higher vacation rate, the city employee would be entitled to the higher rate upon his return. The second part of the test is that it must be reasonably certain that the city employee would have attained the promotion or other benefit if he had been continuously employed. He is not entitled to a promotion if the promotion was a mere possibility. On the other hand, he does not need to establish that the promotion was an absolute certainty. In determining whether a promotion was reasonably certain, the court will consider all of the facts. For example, if an employee hold the position as an Office Specialist I and after two years, ninety percent of the Office Specialist I positions are upgraded to Office Specialist II, then the promotion would probably qualify as a prerequisite of seniority, even if the Personnel Handbook labeled it as a merit promotion. 3. Pension Benefits The escalator principal applies to pension entitlements. It does not matter whether the pension plan is a defined benefit plan or a defined contribution plan. The PERS account is a defined benefit plan where the amount of the employee s retirement is based on a formula based on the number of years in the plan times the highest salary. Some municipalities participate in a cafeteria plan where the employee may direct that any excess funds not used for the purchase of health care benefits be deposited into a 401k account. Such a plan would be a defined contribution plan. Additionally, most, but not all, pensions plans are contributory meaning that both the employee and municipality contribute to the plan. In the case of the defined benefit plan, the city employee must be treated as though he was employed with the municipality for the entire period. For example, if a city employee were employed for twenty-five years, but during that period he was called away for military service for four years, his pension plan would be based on the full twenty-five years not twenty-one years. The municipality would be required to pay into the city employee s account what it would have been required to pay had the employee been present. However, it is not obligated to pay in to the defined benefit plan until the city employee returns from service and is reemployed. 38 Foster v. Dravo Corp., 420 U.S. 92 (1975). 13

14 In a defined contribution plan like the 401k in the example above the municipality would likewise be obligated to contribute what it would have paid if the employee had been continuously employed, but again only after the city employee returned from military service and reemployed. The municipality is not obligated to make up any earnings the city employee missed out on such as interest, dividends and the like. If a pension plan is contributory, the city employee will be obligated to pay into the plan what he would have paid in if he had been continuously employed. However, the city employee is not required to make the payment all at once. Beginning from the date of reemployment, he has a period up to three times the period of the absence for military service, not to exceed five years. 39 For example, a city employee who is recalled to active duty for one year would be entitled to make up his contribution to his pension for his missed time within three years from the date of his reemployment. 4. Status If the city employee s absence for military service was less than 91 days, the municipality is required to reemploy the employee in the position that he would have attained if he had been continuously employed. It would usually be in the same position that he held before he left, but not always. Assuming that the position has not been eliminated and the employee is qualified to perform the duties of the position. 40 If the city employee s absence was 91 days or more, the municipality does not have the obligation to reemploy the employee in the same position he held before he left, but it is required to reemploy the employee in a position of like seniority, status and pay. 41 The term status was also used in VRR law and there have been many cases that have defined the term. Status is an intangible concept that may be associated with the position of employment. For example, a management analyst in the City Manager s Office may have a higher status than one in the Parks and Recreation Department simply due to the nature of the work being performed. A management analyst in the city manager s office may have assignments that have a higher profile than his counterpart in Parks and Recreation. In the context of USERRA, when a city employee, who has been absent for more than 91 days, returns from his military service the municipality will need to analyze the status of the employee s prior position and compare it to the new position if the employee is not reemployed in his former position. Placing the hypothetical management analyst for the City Manager s Office into the Parks and Recreation Department may be a violation of USERRA. 5. Training or Retraining The municipality also has the obligation under USERRA to make reasonable efforts to qualify the city employee for the position he would have attained if had been continuously employed. Training and retraining is more likely necessary for a city U.S.C. 4318(b)(2) U.S.C. 4313(a)(1)(A) U.S.C. 4313(a)(2)(A). 14

15 employee who is absent for military service for an extended period, months or years. However, its possible that training or retraining may be required for absences of six months or less. For example, a street maintenance worker for the Public Works Department may need to be trained or retrained on a new piece of equipment that was purchased during his absence. 6. Protection Against Discharge Without Cause Depending on the city employee s length of absence to perform military service, he may be protected from discharge, except for cause, even if the position he is reemployed in is classified as at-will. If the period of absence was 31 to 180 days, the city employee may not be discharged or terminated for 180 days from the date that the employee is restored to his proper job. 42 A city employee who is absent for military service for 181 days or more may not be discharged witout cause for one year. 43 There is no similar protection if the period of absence is less than 31 days. 7. Protection from Discrimination Municipalities may not discriminate against any person who is or was a service member from initial employment, reemployment, retention in employment, promotion, or any benefit of employment on the basis of his military service. 44 E. ADDITIONAL PROTECTIONS To repeat the general rule, a city employee does not have any rights under USERRA, until he completes his military service and applies for reemployment. There are two exceptions to this general rule: Furlough or Leave of Absence Policy and Health Plan Coverage. 1. Furlough or Leave of Absence Policy If the municipality has a furlough or leave-of-absence policy or practice, the municipality must treat the city employee who is absent for military service as though he is on furlough or a leave-of-absence. To the extent that the employer policy or practice varies among various types of non-military leaves-of-absence, the most favorable treatment accorded any particular leave would be accorded the military leave, regardless of whether the non-military leave is paid or unpaid. Waltermyer v. Aluminum Co of America, 804 F.2d 821. In this case, the city employee is entitled to the same benefits that those on non-military leave-of-absence receive while he is on military leave U.S.C. 4316(c)(2) U.S.C. 4316(c)(1) U.S.C. 4311(a). 15

16 2. Participating in Health Insurance Plan A city employee is provided the right to continue with his health care coverage while he is away performing his military duties. The scope of this benefit depends on the city employee s length of absence. If the period of military service is fewer than 31 days, the municipality can only charge the employee, the employee s share, if any, of the cost of the coverage. 45 Normally, neither a city employee who is performing military service, nor his family is entitled to receive medical services if the period of military service is less than 31 days. For example, when a city employee performs his annual two weeks of active duty, he is not entitled to medical care from the military. In such cases, the city employee will want to continue with his health insurance plan. However, if he is ordered to active duty for more than 31 days, he and his family will be entitled to medical care from the first day. In those cases where the city employee is ordered to active duty for more than 31 days, he has the option to continue with his employer sponsored health insurance plan. If he chooses to continue with the health insurance plan, the municipality is permitted, but not required, to charge up to 102% of the entire premium, including the part that the municipality normally pays in the case of active employees. The city employee has the right to continue to participate in the municipality s health insurance plan for a total of 24 months, unless he fails to report back to the municipality in a timely manner after his military service is completed. Upon return of the city employee to his former job, even if he doesn t elect to continue with the municipality s health insurance plan, he is entitled to immediate reinstatement under the health plan coverage, without exclusion or a waiting period. The only exception is when the Secretary of Veterans Affairs determines that any illness or injury was incurred or aggravated during the performance of military service Disabled Veterans Even in times of peace, members of the military often perform hazardous duties. Military units are continuously conducting training operations in preparation for fighting a war, whether it be simulating an amphibious landing on some beach, conducting flight operations on board an aircraft carrier or simply loading cargo into an aircraft or ship s hold. The risk of an accident is always present. The municipality is required to make reasonable efforts to accommodate for the disability incurred in or aggravated during a city employee s period of military service. 47 If the municipality is unable to reemploy the disabled veteran into a position that the employee would have achieved had he remained continuously employed, then the U.S.C. 4317(a) U.S.C. 4317(b) U.S.C. 4313(a)(3). 16

17 municipality is obligated to reemploy the city employee into another position equivalent in seniority, status and pay, if he is otherwise qualified or could become qualified with reasonable efforts. If no such position exits, then the municipality must employ the disabled veteran in a position which is the nearest approximation to a position referred to above in terms of seniority, status and pay. III. ADDITIONAL EMPLOYER OBLIGATIONS USERRA also requires the city to provide to city employees who are entitled to rights and benefits under the law, a notice of the rights, benefits and obligations of such persons. 48 This requirement may be met by posting a notice where employers customarily place notices for employees. IV. EMPLOYEE S REDRESS FOR VIOLATIONS OF USERRA In the event a city employee is denied his right and benefits under USERRA, he may either request assistance from the Department of Labor in resolving the matter or file a private action in federal court. 49 If he chooses to enlist the assistance of the DOL and the parties are unable to resolve the dispute, the city employee may request the Attorney General of the United States to file an action in federal court on his behalf. 50 USERRA expressly states that a complaint alleging a violation of USERRA is not subject to the statute of limitations. 51 Further no state statute limitations apply. 52 However, the doctrine of laches may apply and at least one federal district court has ruled that a provision in a employment agreement provided that any lawsuit challenging any later termination of employment would have to be filed within six months after termination of employment was enforceable and did not conflict with USERRA. 53 USERRA provides the following remedies for an aggrieved city employee: 1. The court may order the city to comply with USERRA. 2. Compensation for lost wages and benefits. 3. Liquidated damages in the amount equal to lost wages and damages, if the court determines the employer s failure to comply with USERRA was willful. 4. The court may award reasonable attorney fees, expert witness fees and other litigation expenses U.S.C U.S.C and U.S.C U.S.C. 4372(b) U.S.C. 4323(i). 53 Aull v. McKeon-Grano Asso., Inc. 207 U.S. Dist. LEXIS (District Court of New Jersey, Feb. 26, 2007.) U.S.C

18 V. RECOMMENDED BEST MANAGEMENT PRACTICES The following recommendations may help to avoid unnecessary litigation and the adverse publicity that arises from these types of cases will likely generate. 1. Obtain a copy of the USERRA statute and the Department of Labor Regulations and read them carefully. They are remarkably clear. 2. Obtain a copy of the USERRA Rights Notice and make sure it is posted in a location where employees can read it. A copy of the notice is attached. It is also advisable, but not required, to provide a personal copy to anyone now currently serving with the military in a reserve status or who provide notice to the municipality that they are leaving to join the armed services. 3. If a city employee gives notice that he is leaving for military service other than his two week period of annual training or his monthly drills, someone from the Human Resources Department should meet with the city employ and document their discussion and the employee s future plans. While the employee does not have to advise the municipality that he plans to return, the city may be able to make decisions based on the employee s intentions. For example, they may hire someone on a provisional basis to see if the city employee returns after his military service. Additionally, the issue of prior notice will be resolved. 4. If a city employee simply leaves work and never returns, the municipality should make every effort to find out if the employee made any statement to his immediate supervisor regarding any plans to join the military. Since the employee s absence could be lengthy, up to five years or more depending on the circumstances, it is in the municipality s interest to adequately document it s efforts to determine whether the employee provided any notice. 5. Supervisors should be counseled to be attuned to any situations where an employee s military service may cause animosity to others in the department. It would not be unusual to hear complaints from other employees who have to cover an employee s weekend shift due to his military service. Such complaints, even if delivered in a kidding manner may later become evidence against the municipality in a wrongful termination or discrimination lawsuit. 6. The Reserve Officers Association website, located at has an excellent list of articles interpreting USERRA. 6. Further assistance can be obtained from an organization called: Employer Support of the Guard and Reserve and can be found at 18

19 REEMPLOYMENT RIGHTS YOUR RIGHTS UNDER USERRA THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT USERRA protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service or certain types of service in the National Disaster Medical System. USERRA also prohibits employers from discriminating against past and present members of the uniformed services, and applicants to the uniformed services. HEALTH INSURANCE PROTECTION You have the right to be reemployed in your civilian job if you leave that job to perform service in the uniformed service and: you ensure that your employer receives advance written or verbal notice of your service; you have five years or less of cumulative service in the uniformed services while with that particular employer; you return to work or apply for reemployment in a timely manner after conclusion of service; and you have not been separated from service with a disqualifying discharge or under other than honorable conditions. If you are eligible to be reemployed, you must be restored to the job and benefits you would have attained if you had not been absent due to military service or, in some cases, a comparable job. RIGHT TO BE FREE FROM DISCRIMINATION AND RETALIATION If you: are a past or present member of the uniformed service; have applied for membership in the uniformed service; or are obligated to serve in the uniformed service; then an employer may not deny you: initial employment; reemployment; retention in employment; promotion; or any benefit of employment because of this status. If you leave your job to perform military service, you have the right to elect to continue your existing employer-based health plan coverage for you and your dependents for up to 24 months while in the military. Even if you don't elect to continue coverage during your military service, you have the right to be reinstated in your employer's health plan when you are reemployed, generally without any waiting periods or exclusions (e.g., pre-existing condition exclusions) except for service-connected illnesses or injuries. ENFORCEMENT The U.S. Department of Labor, Veterans Employment and Training Service (VETS) is authorized to investigate and resolve complaints of USERRA violations. For assistance in filing a complaint, or for any other information on USERRA, contact VETS at USA-DOL or visit its website at An interactive online USERRA Advisor can be viewed at If you file a complaint with VETS and VETS is unable to resolve it, you may request that your case be referred to the Department of Justice or the Office of Special Counsel, as applicable, for representation. You may also bypass the VETS process and bring a civil action against an employer for violations of USERRA. In addition, an employer may not retaliate against anyone assisting in the enforcement of USERRA rights, including testifying or making a statement in connection with a proceeding under USERRA, even if that person has no service connection. The rights listed here may vary depending on the circumstances. The text of this notice was prepared by VETS, and may be viewed on the internet at this address: Federal law requires employers to notify employees of their rights under USERRA, and employers may meet this requirement by displaying the text of this notice where they customarily place notices for employees. U.S. Department of Labor U.S. Department of Justice Office of Special Counsel Publication Date October 2008