Military Service and Members' Rights
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Protecting Our Members’ Rights When They Are Called To Military Service.
With the continuing call up of National Guard members and Military Reserve members, LEOSU stewards should be familiar with the laws that protect these members. The information provided here will cover the basic elements of the Uniformed Services Employment and Reemployment Rights Act (USERRA), and will cover some provisions that USERRA does not cover.
WHO IS COVERED?
The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted in October 1994 and updated in 1996 and 1998. It provides for job protection and job reinstatement for members of the National Guard and Reserves and covers those who are called up or volunteer for active duty in the current war in Iraq.
GIVING ADVANCE NOTIFICATION
The law requires that the worker give his/her employer either written or oral notice that they will be leaving work. This notice is waived if there are military reasons why advance notice cannot be provided. The law does not spell out what advance notice means, but workers should give their employer notice as soon as they are either called up or volunteer for active duty. An employee could be denied their benefits under the law if they fail to give notice when they could have. The military encourages employees to provide their employer with copies of their written orders whenever it is possible. In the case of annual training, employees may not have written orders, but they should provide the employer with any written documents showing the annual schedule.
HOW LONG ARE EMPLOYEES COVERED?
There is a five year cumulative service limit on the amount of voluntary military leave an employee can use and still retain their reemployment rights. However, service in times of war or national emergency does not count towards this five year total, and of course involuntary recall or retention to active duty do not count.
IF THERE IS MILITARY LEAVE CLAUSE IN THE CONTRACT, CAN AN EMPLOYER DENY LEAVE?
No. Military leaves of absence are covered by law unless an employee has used up his/her five cumulative year benefit.
HOW SOON MUST EMPLOYEES REPORT BACK TO WORK?
Employees are expected to notify an employer that they wish to return to work according to the following schedule:
In the case of attending a weekend drill, the employee is expected to return to work on their next regularly scheduled shift, after they have had an 8 hour rest period.
In the case of a service of 1-30 days, they are expected to return to work their next regularly scheduled shift on the first full day following an 8 hour rest period after they return home.
For a service of 31 to 180 days the employee must apply to return to work no later than 14 days after completing their military duty.
For a service of more then 181 days an employee has 90 days in which to apply for reinstatement.
Employees who are injured while on a military leave have an additional 2 years in which to apply for return to work if they are convalescing from this injury. The employer must make reasonable accommodations if they have a disability.
HOW QUICKLY MUST AN EMPLOYEE BE RETURNED TO WORK?
The law provides that employees who apply for return to work be “promptly reemployed.” This varies in relation to how long an employee has been away or for accommodating the rights of any employee who will be displaced by a returning veteran. For example if the Union contract provides for three days notice of layoff, then a returning veteran may have to wait three days while the other employee who is being displaced by the returning veteran is given their rights.
DO SENIORITY RIGHTS APPLY?
The law provides that employees covered under this Act be treated in regards to seniority as if they were not absent from work. This means they continue to accrue seniority just as if they were still employed. If an employee returns to work and their seniority (including the time they were on military leave) now makes them eligible for more vacation, then they must receive that additional benefit.
WHAT JOB DOES A RETURNING EMPLOYEE GET REINSTATED TO?
The basic rights of a returning veteran are as follows, unless the Union contract provides something better:
Service of 1 to 90 days: (a) 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, in the position the person was employed on the date of the commencement of the military service.
Service of 91 or more 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.
WHAT HAPPENS TO AN EMPLOYEE’S PENSION?
Employees with a defined benefit pension plan must continue to accrue service and pension benefits just as if they had remained at work. There is no break in service and the employer must fund the plan for this seniority.
Employees with defined contribution plans (401(k) plans) have an option to make up their contributions that they missed while on military duty. They have a period of up to 3 times the amount of time they were on military leave (but no more than 5 years) in which to make up their missed contributions. If an employee makes up missed contributions, then the employer is liable for making up the employer’s matching contributions.
DO EMPLOYEES EARN VACATION OR SICK/PERSONAL DAYS WHILE ON A MILITARY LEAVE OF ABSENCE?
While employees continue to accrue seniority while away on duty, under USERRA an employer is not required to provide short term compensation (pay, vacation accrual etc.) However while on active duty, employees must receive all benefits available to other employees on comparable leaves of absence.
An employee is eligible for any benefits they had accrued before taking military leave and can take vacation which has already been earned, but cannot be forced to do so. See the section on UE bargaining tips.
WHAT HAPPENS TO AN EMPLOYEE’S HEALTH INSURANCE?
For absences of less than 30 days the benefits must continue as if the employee was not absent. Upon return to work the employee will be responsible for repaying any employee contributions.
The law does not provide for employers continuing health insurance for absences over 31 days, except that they must offer coverage under COBRA. This means an employee must pay for the insurance in full (actually an employer may charge 102% to cover the employer’s added expenses of doing paper work). Under COBRA an employee can buy health insurance for 18 months.
Returning veterans must be reinstated on the health insurance with no waiting period.
IS THE EMPLOYER REQUIRED TO MAKE UP THE DIFFERENCE BETWEEN AN EMPLOYEE’S REGULAR PAY AND THEIR MILITARY PAY?
No. Some employers offer differential pay or pay for a specific number of military leave days, but this must be negotiated.
LEOSU Bargaining Tips
Most law enforcement & security unions pay little attention when negotiating military leaves of absence clauses in a their contracts. However this makes little sense since many law enforcement officers & security officers are still presently involved with the military.
There are several provisions that the Union tries to negotiate with an employer concerning military leaves of absence. Remember, the law provides the floor level of benefits. There is nothing in the law that prohibits employers from providing better benefits.
Here are some of the provisions we look to negotiate.
Make-up Pay: The employer should provide make-up pay (the difference between an employee’s military pay and what they would normally have earned) for the entire time they are on active duty. Employees have families to provide for, payments to make, rent to pay. This doesn’t go away because there is a war on.
Health Insurance: The employer should provide health insurance for the entire time an employee is on active duty. This is especially true where there are families involved.
Accrued Benefits: The law provides that employers treat employees as if they were still at work. The Union should negotiate that employees continue to accrue benefits like vacation time while they are away.
Seniority and Return to Work: The Union can negotiate a simple clause that says employees return to work on their old job or, if that job no longer exists, they have the same bumping rights they would have had if they remained at work.