Fall 2008 - #8. Protecting Those Who Serve: The Uniformed Services Employment and Reemployment Rights Act and Vermont's Employment Rights Law for Reserve and National Guard Members.

• Author: by Patricia M. Sabalis, Esq.

Vermont Bar Journal

2008.

Fall 2008 - #8.

Protecting Those Who Serve: The Uniformed Services Employment and Reemployment Rights Act and Vermont's Employment Rights Law for Reserve and National Guard Members

The Vermont Bar Journal #175, Volume 34, No. 3 FALL 2008

Protecting Those Who Serve: The Uniformed Services Employment and Reemployment Rights Act and Vermont's Employment Rights Law for Reserve and National Guard Membersby Patricia M. Sabalis, Esq.Over the last seven decades, the United States Congress and state legislatures, including Vermont, have enacted numerous statutes to protect the jobs of individuals who serve in the military. The Selective Training and Service Act of 1940 (STSA) was the first federal statute designed to provide reemployment rights to service members. Although the STSA's reemployment provisions originally were limited to people who had been drafted into the service, the Service Extension Act of 1941 extended the reemployment rights to those who left civilian jobs for voluntary military service. During the sixties, Congress amended the law to include service for National Guard and Reserve training. To clarify and expand the reemployment rights of military personnel, Congress enacted the Vietnam Era Veterans' Readjustment Assistance Act of 1974, commonly known as the Veterans' Reemployment Rights Act (VRRA).

After the Persian Gulf War, Congress passed the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA or the "Act"), 38 U.S.C. 4301-4334, which expanded and re-codified the VRRA. The central purposes of USERRA are:

1. to encourage non-career service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment opportunities which can result from such service; 2. to minimize the disruption to the lives of persons performing service in the uniformed services, and their communities, by providing for the 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.(fn1)

USERRA reflects the public policy that individuals who serve the country through voluntary or involuntary service in the uniformed services should not have to risk their civilian employment. USERRA provides significant employment protections, including guaranteed leave, broad reemployment rights, preservation of benefits, and prohibition of discrimination and retaliation.(fn2)

When construing USERRA and prior laws relating to the reemployment rights of service members, courts have followed the United States Supreme Court's admonition that these laws are to be "liberally construed for the benefit of those who left private life to serve their country."(fn3) Thus, courts generally will interpret these statutes in a way that most benefits the service member. The United States Department of Labor (DOL) has promulgated regulations pursuant to USERRA. The DOL regulations became effective January 18, 2006.

USERRA

USERRA Coverage

1. Covered Employers

   Unlike many anti-discrimination statutes and employment leave laws, which apply only to employers with a minimum number of employees, USERRA applies to all employers, regardless of size. The statute defines the term "employer" broadly; it includes "any person, institution, organization, or other entity that pays salary or wages for work performed or that has control over employment opportunities."(fn4) The term "employer" specifically includes "successor[s] in interest" to an employer, and federal and state governments.(fn5) Generally, an employer is a successor in interest when there is "a substantial continuity in operations, facilities, and workforce from the former employer."(fn6) To be an "employer" under USERRA, the entity need not actually employ the individual; an entity is an employer if it has denied employment "because of the individual's membership, application for membership, performance of service, application for service, or obligation for service in the uniformed services."(fn7)

2. Covered Individuals

   The coverage of particular individuals is quite broad, and depends upon the specific statutory provision at issue. The anti-discrimination provisions apply to "a person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in the uniformed services."(fn8) This provision applies to current employees, applicants for initial employment, and applicants for reemployment.(fn9) The anti-retaliation provisions protect "any person," including non-military employees.(fn10) The reemployment provisions apply to "any person whose absence from a position of employment is necessitated by reason of service in the uniformed services."(fn11) Most covered individuals are members of the "uniformed services," which include the Army, Navy, Marine Corps, Air Force, Coast Guard, Reserves, Public Health Service Commissioned Corps, the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty for training, or full-time National Guard duty, and any other category that the president designates in time of war or national emergency.(fn12)

   Covered individuals are entitled to USERRA's protections regardless of the length of time they have worked for a particular employer. Even temporary, part-time, probationary, or seasonal employees are covered, unless the employment was for "a brief, nonrecurrent period" with "no reasonable expectation that the employment would have continued indefinitely or for a significant period."(fn13)

   A laid-off employee is an employee for purposes of USERRA.(fn14) If the employee was on layoff before or during uniformed service, he may be entitled to reemployment if the employer would have recalled him to employment during the period of service.(fn15) However, if the employee was laid off before or during uniformed service, and the employer would not have recalled him during that period of service, the employee is not entitled to reemployment following the uniformed service; USERRA reemployment rights cannot put the employee in a better position than if he had remained in the civilian employment.(fn16)

   USERRA does not protect independent contractors.(fn17) However, Congress intended that the definition of "employee" be interpreted in the same expansive manner as the term is defined under the Fair Labor Standards Act (FLSA).(fn18) Thus, to determine whether an individual is an independent contractor, the DOL regulations essentially restate the test used under the FLSA to determine independent contractor status-that is, the right of control, the risk of loss or profit, the investment, the required skill, the length of the employment relationship, and whether the service performed is an integral part of the business.(fn19)

   To remain eligible for USERRA benefits and rights based on service in the uniformed services, the individual must remain in good standing and retain an acceptable character of service.(fn20) Thus, even if a particular individual is otherwise covered by USERRA, that person's rights may terminate if she is separated from the service with "a dishonorable or bad conduct discharge" or "under other than honorable conditions."(fn21) If a military review board retroactively upgrades a disqualifying discharge or separation, it restores the employee's reemployment rights providing the employee otherwise meets the Act's eligibility criteria.(fn22) The employer is not liable for back pay and other benefits, such as pension plan credits for the period between discharge and the retroactive upgrade.(fn23)

3. Covered Leave

   The military leave provisions apply to "service" in the uniformed services, which is broadly defined as the performance of duty-on a "voluntary or involuntary basis"-in a uniformed service, and includes: (a) active duty; (b) active duty for training; (c) initial active duty for training; (d) inactive duty training; (e) full-time National Guard duty under federal authority; (f) fitness for duty examinations; (g) authorized funeral honors duty; (h) service in the commissioned corps of the Public Health Service; and (i) service performed as an intermittent disaster-response appointee upon activation of the National Disaster Medical System, even if the individual is not a member of the uniformed services.(fn24)

   An employee is not required to accommodate her employer's interests or concerns regarding the timing, frequency, or duration of uniformed service.(fn25) Similarly, the employer may not refuse to reemploy the employee because it considers the timing, frequency or duration of the service to be unreasonable.(fn26)

   Pay and Benefits During Leave

   Military leave under USERRA is unpaid. However, if an employee requests to use accrued paid time during the military leave, the employer must allow the employee to do so.(fn27) However, the employer may not require the employee to use accrued paid time.(fn28) The employee is not entitled to use accrued paid sick leave during a military leave unless the employer allows employees to use sick leave for any reason.(fn29)

   If the military leave is for fewer than thirty-one days, the employee cannot be required to pay more than the regular employee share, if any, for health plan coverage.(fn30) If the leave is for longer than thirty-one days, USERRA specifically addresses health plans and provides for a limited continuation of coverage...