In the past two months, more than 100,000 members of the U.S. armed forces have deployed to ships and bases throughout the Middle East and around the world. Many of these sailors, soldiers, and marines are members of the armed forces reserves. The military has increasingly come to depend on reserves to fill critical roles. This increased use of reserves directly impacts civilian employers who may see some employees depart to serve in the military on active duty for a time. When this happens, employers must carefully consider their legal obligations toward those employees who are called to active duty. In California, employers have obligations under both the California Military and Veterans Code and the federal Uniformed Services Employment and Reemployment Rights of Act of 1994 ("USERRA").
California law in this area is fairly straightforward. Employers are prohibited from discriminating against employees or applicants on the basis of military service or affiliation. Private sector employers must allow employees to take up to 17 days of unpaid leave annually to fulfill their obligations to the military. Public employers must grant employees up to 180 days of temporary military leave.
In contrast, USERRA contains exhaustive regulations that apply to employers in all states. This law prohibits discrimination, requires employers to grant a leave of absence to employees called to active duty, provides for the limited continuation of benefits, and requires reinstatement of the employee upon the completion of a leave of absence. All employers, regardless of size or industry, are prohibited from discriminating against members of the uniformed services. In addition, when employees are called to active duty, employers must allow them to take a leave of absence for up to 5 years without pay. To qualify for the leave, employees need only give their employer as much notice as possible under the circumstances. When they are not prohibited from disclosure due to security concerns, an employer may ask the employee to provide a copy of his/her orders. While on leave, an employee may elect to use vacation or paid time off; however, employers are prohibited from requiring their employees to do so. Employees on military leave of absence also must be offered COBRA benefits to continue health care coverage for employees and their dependents for up to 18 months.
Upon return from active duty, an employee is entitled to reinstatement to his/her prior job or an equivalent position. Depending on the length of active duty service, returning employees may not be terminated except for cause for a period of up to one year after returning from service. Employees are also entitled to restoration of all benefits based on seniority, including those they would have accumulated had they been continuously employed. Employees and their families also have rights to participate in employer sponsored health, pension, and retirement plans.
In the coming months, many thousands of reservists will depart and/or return from active military service. Those employers who count members of the reserve armed forces among their employees will be required to facilitate their leave, and their return from leave, in accordance with law. This can be confusing and difficult. Employers are well advised to use caution when making decisions about the employment and reemployment rights of members of the armed forces. Should you have any questions or concerns regarding these obligations, or if you would like our assistance in complying with state and federal law with respect to the military leave of employees, please contact Edward Cramp at 619.533.7372 or ecramp@luce.com.
Special Note: Mr. Cramp, an associate in Luce Forward''s Labor and Employment Practice Area, is also a Lieutenant in the United States Navy Reserve where he serves as a member of the Judge Advocate General''s Corps. From October 2001 until July 2002, Mr. Cramp was recalled to active duty, after which he returned to Luce Forward. He has extensive experience with the rights and benefits attendant to military service.
