Military leave marches on with changes

The spectacle of millions of Iraqis lined up to vote in their country’s first truly free elections on Jan. 30, seemed but a pipe dream while I breathed in the billowing black smoke from hundreds of blazing oil wells at the end of the Persian Gulf War more than a decade ago. The Iraqis’ newly cherished right to vote was made possible in no small part by another generation of valiant U.S. troops serving in Iraq and other hot spots. Of these, 200,000 or so are Reserve and National Guard troops called to active military duty and, therefore, on military leave from work.

Despite its historical significance, the Iraqi election will not mandate an end to military leave. In the coming year, we will see a number of changes to the Uniformed Services Employment and Re-employment Rights Act.

This law affords protection to the legions of warrior employees serving around the globe. It requires employers to allow employees leave for service in the uniformed service and reinstatement to employment thereafter without loss of seniority and other employment benefits. Changes to USERRA are anticipated from all three branches of our government here at home.

From the legislative branch, the Veterans Benefits Improvement Act enacted in December provided service members an early holiday gift. VBIA modifies a number of other laws pertaining to housing, education and other benefits available to veterans. Of particular note to employers, VBIA amends USERRA in two significant respects.

First, VBIA extends from 18 months to 24 months Section 4317 of USERRA’s mandate that employers provide elective continuation of employer-sponsored health insurance, similar to that required under the Consolidated Omnibus Budget Reconcilia-tion Act, to those service members whose coverage would otherwise end because of an absence due to service in the uniformed service. (Unlike COBRA, however, USERRA’s continuation obligation applies to all employers regardless of the number of employees on the payroll.) The extended elective coverage period already is in effect.

Second, VBIA obligates employers to advise employees about USERRA notice of protected rights, benefits and obligations. This new notification obligation can be met by posting a notice wherever the employer posts other required employment notices. The Secretary of the Department of Labor has published a prototype notice for employers to post, which is available for free on the DOL’s Web site, www.dol.gov. The obligation to post such notice became effective March 10.

Change also is expected from the executive branch. Besides signing VIBA, final regulations for USERRA are expected to be published later this year by DOL. The period for the public to comment on the new, proposed USERRA regulations closed last fall with little fanfare. Unlike the highly political and controversial amendments to the Fair Labor Standards Act last summer, the proposed USERRA regulations have drawn little public attention. However, once published, employers will need to become familiar with the new obligations under the regulations.

Finally, the judiciary continues to shape USERRA. For the most part, judicial clarification has been welcome guidance for employers. For example, in Gordon v. Wawa Inc., the 3rd Circuit ruled that an employee is not entitled to a “rest period” in addition to the time limits set by USERRA for giving notice of return to work after leave. Meanwhile, in Rogers v. city of San Antonio, the 5th Circuit attempted to clarify the standard for awarding non-seniority based benefits to returning service members. In short, non-seniority based benefits are to be awarded to returning service members in the same manner as those benefits awarded to employees on comparable nonmilitary leaves.

In addition, mandatory alternative dispute programs have come under judicial fire. At least one court has ruled that USERRA rights cannot be made subject to mandatory alternative dispute programs. In other words, employees protected by USERRA retain the right to sue in court.

While our soldiers continue to guard against tyranny and terrorism, employers must look past the triumph of Iraqi elections. Indeed, now is the time to review and understand the changing USERRA obligations they have for those employees on or returning from military leave.

Patrick M. Gavin is a labor and employment attorney at Lathrop & Gage LC.

[[In-content Ad]]