Employer Requirements Under The Uniformed Services Employment and Reemployment Rights Act (USERRA) & New Mexico s Re-Employment Act

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1 SHEEHAN & SHEEHAN, P.A. Attorneys at Law Est Employer Requirements Under The Uniformed Services Employment and Reemployment Rights Act (USERRA) & New Mexico s Re-Employment Act By: Matthew C. Sanchez Autumn 2012 Employment Law Breakfast September 26, 2012 Disclaimer The authors, publishers, speakers, and sponsors of this program present these materials with the understanding that the information provided is not legal advice. Due to the rapidly changing nature of the law, information contained in these publications or presented by the speakers may become outdated. As a result, an attorney or other individual using these materials must always research original sources of authority and update this information to ensure accuracy when dealing with a specific client s legal matters. Further, the presentation or materials provided are not intended to establish practice standards or standards of care applicable to an attorney s performance. In no event will the authors, the sponsors, the speakers, or the publishers be liable for any direct, indirect, or consequential damages resulting from the use of these materials.

2 Employer Requirements Under The Uniformed Services Employment and Reemployment Rights Act (USERRA) & New Mexico s Re-Employment Act By: Matthew C. Sanchez As of 2010, our nation s veteran population totaled over 22.7 million people. Out of this total, around 175,000 currently reside in New Mexico. New veterans from the recent Iraq and Afghanistan conflicts are now returning home and many will seek reemployment with their previous employers. Regardless of an employer s political stance on military service, the simple fact is these individuals are an integral part of our nation s workforce. Employees returning from military service have certain protections relating to their employment. As such, employers of all size must become familiar with workplace obligations to service-member employees. This section first discusses employee rights and employer obligations under the Uniform Services Employment and Reemployment Act, then turns to New Mexico s own separate Act protecting the veteran workforce, and ends with a brief discussion of employee policies on military leave. I. USERRA USERRA was signed by President Bill Clinton on October 13, 1994 and replaced and expanded the former Veterans Reemployment Rights Act ( VRRA ). Its purpose is threefold: (1) to encourage non-career service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service; (2) to minimize the disruption to the lives of persons performing service in the uniformed services as well as to their employers, their fellow employees, and their communities, by providing for prompt reemployment of such persons upon their completion of such service; and (3) to prohibit discrimination against persons because of their service in the uniformed services. A. Applicability and Enforcement USERRA applies to persons who perform duty, voluntarily or involuntarily, in the uniformed services. These services include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services. Federal training or service in the Army National Guard and Air National Guard is also covered under USERRA. Uniformed service includes active duty, active duty for training, inactive duty training (such as drills), initial active duty training, and funeral honors duty performed by National Guard and reserve members as well as the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty. 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 (i.e., temporary employees). USERRA applies to virtually all U.S. employers regardless of size.

3 USERRA is enforced by the Department of Labor s Veterans Employment and Training Service ( VETS ). However, the law also allows an employee to enforce his or her rights by filing a court action directly without filing a complaint with VETS. Prevailing plaintiffs are entitled to receive the benefit he or she was denied, attorneys fees, expert witness fees, and other litigation expenses. Note that employees who decide to sue under USERRA are not charged with any fees or court costs. Although employees must request reemployment within the guidelines below, they are not automatically barred from a claim if they do not meet the time limits. Moreover, there is no statutory deadline within which an employee must file a claim. In fiscal year 2000, the DOL VETS office closed 981 cases and 90% were closed in 90 days or less. B. Employer Obligations Under USERRA USERRA broadly defines an employer as: any person, institution, organization, or other entity to whom the employer has delegated the performance of employer-related responsibilities. Under USERRA, employers must: Grant reservists leave to attend military training; Reemploy an eligible employee upon his or her return from service; Guarantee pension plan benefits that accrued during military service, regardless of whether a pension plan is a defined benefit plan or defined contribution plan; Provide health benefits continuation for service members and their families for up to 18 months; Refrain from discriminating against a person on the basis of past military service, current military obligations, or an intent to serve; and Refrain from terminating a service member employee unless the termination is for cause for either 180 days or up to a full year, depending on the length of service. C. Eligibility Requirements Service members returning from a period of service in the uniformed services must be reemployed by their pre-service employer if they meet five eligibility criteria. The person: Must have held a civilian job; Must not have been a temporary employee; Must have given notice to the employer that he or she was leaving the job for service in the uniformed services (unless giving notice is precluded by military necessity or otherwise impossible or unreasonable);

4 Must not have served for more than 5 years; Must not have been released from service under dishonorable or other punitive conditions; and Must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment. USERRA establishes a 5-year cumulative total on military service with a single employer, with certain exceptions allowed for call-ups during emergencies, for reserve drills and annually scheduled active duty for training, etc. USERRA also allows an employee to complete an initial period of active duty that exceeds 5 years, e.g., enlistees in the Navy s nuclear power program who are required to serve 6 years. D. Adequate Notice to Employer of Obligation or Intention to Serve Employees are required to give advance written or verbal notice to an employer of an obligation or intention to perform service in the uniformed service. Military websites state that it is legally sufficient for an employee to give notice to the employer the night before, but most advise employees to give employers their training schedule as far in advance as possible. No notice is required if the employee is precluded by military necessity (a term which is defined by the Secretary of Defense and is not subject to judicial review) or, under all of the relevant circumstances, the giving of notice is otherwise unreasonable or impossible. E. Reemployment Rights and Time Limits Under USERRA, restoration rights are based on the duration of military service rather than the type of military duty performed, e.g., active duty for training, inactive duty, etc. Time limits for returning to work under USERRA, with the exception of fitness-for-service examinations, depend upon the duration of a person s military service. The applicable time limits are as follows: Less than 31 days of service. The employee must return by the beginning of the first regularly scheduled work period after the end of the calendar day of duty plus time required to return home safely and an eight hour rest period. If this is impossible or unreasonable, then as soon as possible. 31 to 180 days of service. Application for reemployment must be submitted no later than 14 days after completion of a person s service. If this is impossible or unreasonable through no fault of the person, then as soon as possible. 181 days or more of service. Application for reemployment must be submitted no later than 90 days after completion of a person s military service.

5 In the event of a service-connected injury or illness. Reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing. F. Employer Exceptions to Reemployment Obligation An employer is not required to reemploy an individual if: The employer s circumstances have so changed as to make such reemployment impossible or unreasonable; A person is disabled by service or not qualified for service, and providing a reasonable accommodation or training to the employee would create an undue hardship; or The individual was a temporary employee. Under USERRA, an employer also does not have to reemploy an individual that received anything other than an honorable discharge. Employers can require proof that the employee was in the service, received an honorable discharge, and met all time requirements. However, employers may not require an employee to wait for reemployment while the proper documentation is sought. Rather, an employer may terminate employment if the employee s documentation reveals that discharge was not honorable. II. New Mexico s Act New Mexico s Reemployment of Persons In Armed Forces Act ( the Act ) remains unamended since the 1970 s and the basic tenants of the Act are the same as USERRA. There are, however, a few notable differences: A. Eligible Employees Unlike USERRA, an individual does not necessarily have to receive an honorable discharge to qualify for job reinstatement under New Mexico state law. The Reemployment of Persons In Armed Forces Act provides job protections to: any person who, since July 1, 1940, has left or leaves a position he has held, other than a temporary position, in the employ of any employer to enter the armed forces of the United States, national guard or organized reserve, and who serves on active duty and is honorably discharged or released from active duty to complete his remaining service in a reserve component, or is entitled to a certificate of service, or who terminates his service without dishonor, if an officer, and is still qualified to perform the duties of such position.... Note: similar to USERRA, employees with temporary positions are not eligible for benefits under New Mexico s Act.

6 B. Additional Employee Job Protections An eligible employee reemployed under New Mexico s Act is entitled to restoration without loss of seniority and entitled to additional job protection. Under the Act, an employer cannot discharge an eligible employee from his or her position without cause for one year from the date of job restoration. C. Employer Obligations Days to Apply Employers covered by New Mexico s Act must reemploy individuals who make application for reemployment within ninety days after he is relieved from such training and service or from hospitalization continuing after discharge for a period of not more than one year The Act does not provide different timeframes to apply for reemployment based on the duration of the service (i.e. active duty vs. reserve vs. national guard training). As a result, an eligible employee s timeframe to apply for reemployment is not subject to the same durational limitations found within USERRA (i.e. less than 31 days of service vs. 31 to 180 days of service vs. 181 or more days of service). Thus, a New Mexico employee does not necessarily have to satisfy the USERRA duration of service criteria in order to have a valid claim under the State s Act. 2. Public vs. Private Employers There are slight distinctions between the obligations of private and public employers: Private: if the person was in the employ of a private employer, the employer must restore the employee to his or her former position or a position of like seniority, status, and pay unless the employer's circumstances have so changed as to make it impossible or unreasonable to restore the employee. Public: if the person was in the employ of the state of New Mexico or any political subdivision thereof, and meets all the State requirements for maintaining public employee status (further detailed in New Mexico s Personnel Act), then he or she must be restored to his or her position or to a position of like seniority, status, and pay. Note: the Act contains language exempting a private employer from the obligations of the Act in certain circumstances. Similar to USERRA, an employer may be excused from its reemployment obligations if the employer s circumstances have so changed as to make it impossible or unreasonable to [restore an eligible employee to his or her former position or a position of like seniority, status and pay]. There are no reported New Mexico cases analyzing exactly what constitutes a changed circumstance(s) making compliance with the Act impossible or unreasonable. 3. Non-Discrimination The overall intent of New Mexico s Act is to provide protections to employees serving in the armed forces. Employers should never discriminate against an employee on the basis of military service status with respect to any right or privilege of employment.

7 4. Length of Service New Mexico s Act provides potentially longer job reemployment rights than under USERRA. An eligible employee may be entitled to return to his or her prior employment position even after seven years of military service. D. Employee Remedies An employer, whether public or private, who fails or refuses to comply with the Reemployment of Persons In Armed Forces Act may be forced by the court to both reemploy an eligible employee and compensate the person for any lost wages or benefits suffered by reason of the employer s non-compliance with the Act. E. Other Military Leave Protections Under New Mexico Law 1. Paid Leave for Public Employees State, county, municipal, school district, and other public employees who are members of organized military units (such as the Army or Air National Guard or Army, Air Force, Navy, Marine, or Coast Guard reserves, or members of the civil air patrol) must be given leave with pay for up to 15 days per federal fiscal year for training. This leave is in addition to any other leave or vacation time with pay to which the public employee is otherwise entitled. The governor may also grant any member of the national guard or reserves who is a state employee additional military leave with pay in excess of that allowed above, not to exceed fifteen working days per federal fiscal year, for periods of active duty for training when the governor deems that such training will benefit the state by enabling that employee to better perform the duties required in his state occupation. New Mexico also provides up to fifteen days of paid leave to public employees who are members of the State Defense Force. This leave is also in addition to any other leave or vacation time the public employee is otherwise entitled to take. 2. Federal National Guard Service New Mexico employees who are also members of the National Guard are afforded the rights, benefits, and protections of both the Civil Relief Act and USERRA if ordered to federal or state active duty for certain periods of time. III. Employment Policies on Military Leave Employers are not legally required to have a written military leave policy. As with so many other employment practices, however, a well-drafted, written policy setting out the details of an employer s military leave program can provide beneficial guidance to employees. A written policy with all the essential elements is useful in defending against a claim that an employer violated state or federal law. (This assumes, of course, that the policy is consistently adhered to by the employer.)

8 Common elements of a well-drafted military leave policy include: A statement of who is covered, that is, draftees, volunteers, reservists, and National Guard members. Covered leave includes active duty, training, and other military obligations. A provision requiring employees to give notice of a military leave. (It is appropriate to ask employees to give notice as soon as possible after employees receive military orders.) A request for a copy of any official papers employees receive, as soon as possible. Employers cannot control when military leave is taken. In those cases, however, where an employee is offered a choice by the military of various times for service, a policy can ask that employees take business needs into account when arranging military service. A description of whether salary is continued during a military leave. (Neither state nor federal law requires paying employees during a military leave.) If the employer chooses to continue an employee s salary for a period of time or pay the difference between regular wages and military salary, that should be clearly stated in the policy. A statement that, when an employee returns from military leave, he or she will be credited for pension entitlements and other deferred-income plans, plus profit sharing plans, for the period that the employee was on leave. (If the employer s plan requires employee contributions, employers must allow returning employees to make up any missed employee contributions over a period of three times the length of military service, up to a maximum make-up period of five years.) If the employer s vacation policy provides for increased accruals based on seniority, the policy should state that vacation will continue to accrue as if the employee never went on military leave. The policy should describe re-employment rights as applicable. The policy also should state that re-employment will not occur if the employer s circumstances have changed so drastically that reinstatement would cause hardship or not be at all possible. A sample military leave policy is attached. Final Note: If an employer does not reinstate an employee on the grounds of hardship, or if an employee is laid off while on military leave, the burden will be on the employer to justify these actions. The employer will have to show that a failure to reinstate or a layoff was based on legitimate business reasons and not based on the employee s past or current military obligations or his or her intent to serve.

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