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"Federal Law Protects Guardsmen's Jobs at Home While They Serve"

Daily Journal
By: Stephen P. Wiman

Since 9/11, some 18,000 Californians have served abroad in the California National Guard. There are currently about 4,500 California guardsmen abroad today. These folks are your neighbors and fellow workers. Most have left existing jobs to serve their country. When they return from service, do they have jobs?

The answer is yes, thanks to the Uniformed Services Employment and Reemployment Rights Act of 1994, 38 U.S.C. Section 4301 et seq. - also known as USERRA - and the California Military and Veterans Code, Section 389 et seq. Copies of recently adopted, final USERRA regulations may be found at the Department of Labor's Web site,

Congress enacted USERRA in order to protect employees from discrimination or retaliation because of military service causing an absence from work. 38 U.S.C. Section 4311. USERRA encourages "noncareer service in the uniformed services by eliminating or minimizing the disadvantages to civilian careers and employment which can result from such service." 38 U.S.C. Section 4301(a)(1).

Section 4303(13) defines "service in the uniformed services" as "performance of duty on a voluntary or involuntary basis in a uniformed service under competent authority." USERRA applies to all employers and employees, including federal and state employers. 38 U.S.C. Sections 4303(3) and 4(A) and 4312(a). It does not matter how big or small the employer is or whether the employee is full-time or part-time; there is also no minimum length of time an employee must be employed.

USERRA covers service in the Army, Navy, Marines, Air Force, Coast Guard and Air and Army National Guards. 38 U.S.C. Section 4303.) Under the act, an employer must grant employees leave for military service cumulatively totaling five years. 38 U.S.C. Section 4312(a)(2). Moreover, an employer may not discriminate against an employee for military service for purposes of initial employment, re-employment, retention in employment, promotion or any benefit of employment; an employer also may not retaliate against an employee for asserting any rights under USERRA. 38 U.S.C. Section 4311.

An employer need not pay employees while on leave; however, an employer may allow, but not require, employees to apply accrued vacation to the leave. 38 U.S.C. Section 4316(d). For an exempt employee who is absent less than a full workweek on leave, an employer must pay the employee for a full week's work. 29 Code of Federal R. Section 541.602(a) and 541.118(a)(4).

With some statutory exceptions, upon return from leave, an employee is entitled to be placed in the position the employee would have attained if employment had not been interrupted by military service. 38 U.S.C. Sections 4313 and 4316. Those employees who served more than 180 days may not be discharged without cause within one year following a return to employment.

An employee who served more than 30 days but less than 181 days is protected from a without-cause termination for a period of 180 days following return to work. 38 U.S.C. Section 4316(c). A reduction in force for economic reasons may constitute cause. Cf. Gianculas v. Trans World Airlines Inc. (9th Cir. 1985) 761 F.2d 1391 [a non-USERRA case].

An employer is not required to re-employ a person returning from military leave if the employer is able to prove that the employer's circumstances have so changed as to make such re-employment impossible or unreasonable, that re-employment of disabled returnees would impose an undue hardship or that the individual's employment before military service is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period. 38 U.S.C. Section 4312(d)(1).

Employees on military leave are entitled to elect to continue receiving benefits under the employer's health plan. 38 U.S.C. Section 4317. If the leave exceeds 30 days, the employee may be required to pay up to 102 percent of the full premium under the plan. If the leave is for fewer than 31 days, then the employee may not be required to pay more than the employee share, if any, for the coverage. 38 U.S.C. Section 4317. The maximum period of coverage is the lesser of 24 months or the day after the deadline for reporting to work or applying for re-employment. 38 U.S.C. Section 4317(a(1); see 38 U.S.C. Sections 4312(a)(3) and (e) for the deadlines.

Regarding seniority, and benefits based upon seniority, an employee under USERRA "is entitled to the seniority and other rights and benefits determined by seniority that the employee had on the date of commencement" of leave and any additional seniority and rights and benefits the employee would have attained if the employee had remained continuously employed. 38 U.S.C. Section 4316(a). Pension benefits are unaffected by military leave; an employee is entitled to such benefits as if continuously employed during the leave. 38 U.S.C. Section 4318.

An employer has an obligation to provide reasonable accommodation for employees who have experienced service-related injuries. 38 U.S.C. Section 4313(a)(3). If reasonable accommodation is unable to assist the employee in performing the job the employee held, or would have held, but for military service, that is not the end of the employer's obligation under USERRA. In such a case, the employee must be re-employed in a position of equivalent seniority, status and pay for which the employee is qualified to perform (or would be qualified to perform "with reasonable efforts by the employer") or re-employed in a position that is the nearest approximation thereto "consistent with the circumstances" of the case. 38 U.S.C. Section 4313.

An employer is obliged to provide notice of employee rights under USERRA. 38 U.S.C. Section 4334. The U.S. Department of Labor provides employers the text of the notice, which may be posted where an employer customarily posts employee notices. A copy of the notice may be obtained from the department's Web site.

An employee seeking to take USERRA leave must provide written or oral notice to the employer. 38 U.S.C. Section 4312(a). No such notice is required if precluded by military necessity or if, under all of the relevant circumstances, the giving of such notice is otherwise impossible or unreasonable. 38 U.S.C. Section 4312(b).

In order to receive the benefit of USERRA, the employee also must report back to work or submit an application for re-employment within specified time deadlines following completion of military service. 38 U.S.C. Sections 4312(a)(3) and (e).

A person who claims a violation of USERRA may file a complaint with the U.S. Department of Labor. 38 U.S.C. Section 4322. If the Department of Labor is unable to resolve the complaint following an investigation, the claimant may request the secretary of Labor to refer the complaint to the U.S. attorney general, who is authorized to file an action on behalf of the claimant. 38 U.S.C. Section 4323(a)(2).

Alternatively, the claimant may file a private action in federal district court. 38 U.S.C. Sections 4323(a)(2) (b)(3) and (c)(2). If the action is against a state employer, the action should be initiated in state court. 38 U.S.C. Section 4323(b)(2). Exhaustion of an administrative remedy is not required. 38 U.S.C. Section 4323(a)(2)(A).

USERRA contains no statute of limitations; rather, courts have applied the doctrine of laches to USERRA claims. See, e.g., Wallace v. Hardee's of Oxford Inc., 874 F. Supp. 374 (M.D. Ala. 1995). Courts may not apply a state statute of limitations. 38 U.S.C. Section 4323(i). Remedies include an order of compliance with USERRA, equitable relief, compensation for lost wages and benefits and double lost wages and benefits if the employer's violation is willful. 38 U.S.C. Sections 4323(d) and (e).

USERRA is the principal protector of a serviceman or -woman's employment rights. However, California law also provides protections. These may be found at Sections 389 et seq. of the California Military and Veterans Code. If California law provides a greater benefit than USERRA, then California law governs. 38 U.S.C. Section 4302(a). Conversely, if USERRA provides a greater benefit than California law, USERRA rules. 38 U.S.C. Section 4302(b).

Section 394 of the Military and Veterans Code proscribes discrimination against members of the military for their service in the military, both generally and specifically with respect to employment. An employer who discriminates against a person for service in the military will be liable for actual damages and reasonable attorney fees. Military and Veterans Code Section 394(g). Such discrimination also constitutes a misdemeanor.

At a time when so many Californians are serving abroad in the National Guard, both employers and those serving in the military need to pay special attention to the protections of USERRA and the relevant provisions of the California Military and Veterans Code.

Stephen P. Wiman is chair of the litigation department of Nossaman, Guthner, Knox & Elliott in Los Angeles.

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