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Back to Archives | Back to November 2004 Contents 

Military Leave: Supporting Employees

By Judith Brown, Director of Research, International Public Management Association for Human Resources, Alexandria, Virginia



he scene has been reenacted many times in the news recently: a military reservist’s wife packing boxes to move, as she cannot afford to pay the mortgage and monthly bills since her husband, a military reservist, has been called to active duty.

Supporting employees called up for military duty is an important role for government employers. For the most part, government employers have policy guidelines that allow employees to adjust schedules to attend weekend drills or to use military leave on average of 15 to 31 days for field training or active duty leave (often called summer camp) without loss of pay for such time as they are in the military service. Now, however, with the ongoing call-up of the reserves to active duty status, police departments are losing personnel to leaves of absence to serve in the armed forces. State and federal laws require employers to provide this leave of absence for the activated reservists, to provide medical benefits and reemployment rights to employees who are called to active duty. Under the law, a veteran’s right to reemployment includes the right to restoration of the employee benefits in which the veteran, and his or her dependents, participated at the time the uniformed service leave began, as well as to benefits that began during the leave for which the service member would reasonably have become eligible.

However, the law does not require the employer to provide full continuation of the employee’s salary for an indefinite period, and this becomes the news story when activated reservists and their families face a sufficient reduction in salary from their civilian pay to the armed forces pay. All agencies need to address the military leave issue. In making this assessment, agencies should do the following:
  • Review federal, state, and local laws affecting military leave.

  • Identify and track employees who belong to the reserve or National Guard.

  • Design a contingency staffing plan to prepare for potential loss of key personnel activated for duty.

  • Develop and communicate clearly a written policy and program so employees and the employer understand issues surrounding pay, benefits, and job protection.

  • Consider developing a program to assist families of employees who may be activated for military service. Family members may need to understand how benefits and tax return issues will affect them.

So far it is reported that employers are doing a good job of adhering to the needs of the employees activated for military duty. For the third straight year, the U.S. Department of Labor saw a decline in the number of complaints filed by veterans, reservists, and National Guard members charging employers with failing to protect their jobs and benefits while they were on military duty.

The Governing Law: USERRA

The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA; 43 U.S.C. 38) is administered by the U.S. Department of Labor through the Veterans’ Employment and Training Service. USERRA potentially covers every person who has served in the military and applies to all employers in the public and private sector, including federal employers.

USERRA provides that returning service members are to be reemployed in the job that they would have attained had they not been absent for military service, with the same seniority, status, and pay as well as other rights and benefits determined by seniority. USERRA also requires that reasonable efforts (such as training or retraining) be made to enable returning service members to refresh or upgrade their skills to help them qualify for reemployment. The law clearly provides for alternative reemployment positions if the service member cannot qualify for the escalator position. USERRA reaffirms and clarifies that while an individual is performing military service, he or she is deemed to be on furlough or leave of absence and is entitled to the nonseniority rights accorded other individuals on nonmilitary leaves of absence.

Pay and Benefit Issues during Military Leave

The Fair Labor Standards Act (FLSA) and state laws may require that employers continue to pay employees on temporary military leave. USERRA requires that employers provide COBRA-like continuation of group health coverage for up to 18 months for employees on military leave and their covered dependents who would otherwise lose their coverage because of the employee’s military leave. This includes employers not covered by COBRA itself, such as employers with fewer than 20 employees. For military leave not exceeding 30 days, employers cannot charge employees on leave a premium any greater than that normally paid by employees.

The problem arises after the 30 days. Thereafter, the employer is under no legal obligation to financially support the employee. So where does that leave the employee if he or she is required to be out in the trenches for an extended period of time, with only his or her military pay (sometimes inadequate) to cover his or her financial obligations?

How Some Local Governments Are Responding

A number of employers are reviewing the benefits offered to employees called to active duty. Some are providing supplemental pay as well as extending employer-sponsored medical benefits.
  • The City of Shreveport, Louisiana, guarantees reinstatement; pays the difference between active military pay and regular city wages if city wages are greater; continues to co-pay health insurance premiums at option of employee (but which will be secondary coverage while on active duty); and permits service credit allowed under the pension plans.

  • The City of Lubbock, Texas, supplements military pay for reservists to ensure that they have full salary so that their families are not affected financially.

  • The County of San Diego, California, is providing supplemental pay and will continue all employer-sponsored benefits for employees called back for duty.

  • Broward County, Florida, continues the employee’s full pay for the first 30 calendar days and thereafter supplements the military income up to the level of base pay they were earning at the time of their call-up.

  • The Los Angeles Unified School District’s board voted unanimously to implement a “war time policy” which allows for all employees called to active duty to receive the difference between what the military pays and their usual district earnings.

  • Contra Costa County, California, has adopted a resolution to pay the difference between the military pay and the employee’s county pay. The employee continues to earn all accruals and seniority, and the county continues its share of all retirement and benefit contributions.

  • The County of Los Angeles, California, has approved provisions to continue regular pay to employees, offset by military pay, up to 360 days. California law requires the continuation of county pay for the first 30 days after an employee is involuntarily called into duty, if the employee has been employed with them for at least a year. Employees will continue to receive related benefits such as health, dental, and life insurance, retirement credit, vacation and sick leave accrual, and seniority status.

  • The City of West Palm Beach, Florida, enacted a revised ordinance. In this ordinance if the employee’s base military pay per month is greater than his or her base city pay for that same month, the city is not obligated to pay the employee base pay for that period of time. The employee is entitled to longevity and other incentive pay he or she is otherwise entitled to from the city. If the employee’s base military pay per month is less than his or her base city pay for that same month, the city is obligated to pay the difference so that the employee’s base pay per month at least equals the amount of pay he or she would earn if not mobilized. The employee is entitled to longevity and other incentive pay he or she is otherwise entitled to from the city.

  • City of Tucson employees are entitled to military leave without loss of pay for a period not to exceed 30 days in any two consecutive years. When called beyond the 30 days, employees are entitled to receive pay to supplement their military base pay to the equivalent of their regular rate of city pay. In addition, employees are eligible to continue accruing vacation and sick leave during this time.

  • In Illinois, the Local Government Employees Benefits Continuation Act protects municipal employees on military leave. That state law requires that municipalities pay 100 percent of pay and benefits, minus military base pay, for “any employee of a unit of local government who is a member of any reserve component of the United States Armed Services, including the Illinois National Guard, and who is mobilized to active military duty on or after August 1,1990, as a result of an order of the President of the United States.”

  • On November 15, 2001, the Dover, New Hampshire, city council passed a resolution authorizing the city manager to continue all city-provided benefits (health, dental, and life insurance, leave accruals, access to city recreation facilities, and so on) and supplement an employee’s military pay to keep them whole while called to active duty.

Returning Veterans

When a service member is reemployed, there are four basic entitlements the employer is required to provide:
  • Prompt reinstatement (generally a matter of days, not weeks, but promptness will depend on the length of absence).

  • Accrued seniority, as if continuously employed. This applies to rights and benefits determined by seniority as well as to status, rate of pay, vesting, and credit for the period for pension benefit computations.

  • Training or retraining and other accommodations.

  • Special protection against discharge, except for cause. The burden of proof to show that a discharge was for cause is on the employer. The period of this protection is 180 days after periods of service of 31–180 days, and it is one year for periods of service of 181 days or more.

A returning veteran employee is not always entitled to have the same job back. In the case of military service of one to 90 days, the person is entitled to the same job or promoted position if this would have been attained with reasonable certainty. If unable to become qualified for a new position after reasonable efforts by the employer, the person is entitled to the job he or she left. After service of 91 days or longer, the person is entitled to the same position or a position of like seniority, status, and pay. The reemployment position with the highest priority reflects the principle that each returning service member step back onto the seniority escalator at the point the person would have occupied if the person had remained continuously employed. Therefore, if the agency has endured a loss affecting the status of employees in general, the position could be at a lower level than the one previously held, it could be a different job, or it could conceivably be a layoff status.

If a person has been gone from civilian law enforcement for months or years, his or her civilian job skills may have diminished during a long period without use. A person must be (or become) qualified to do the job to have reemployment rights, but USERRA requires the employer to make reasonable efforts to qualify that person. Reasonable efforts means actions, including training, that do not cause undue hardship to the employer. If a person cannot become qualified after reasonable efforts by the employer, and is not disabled, the person must be employed in any other position of lesser status and pay, which he or she is qualified to perform, with full seniority. USERRA also requires the employer to make reasonable efforts to accommodate persons with a disability incurred or aggravated during military service. If the person is unable to become qualified for the original position due to the disability, the person must be employed in a position of equivalent seniority, status, and pay that the employee is qualified to perform, or in a position that most nearly approximates the position in terms of seniority, status, and pay.

Available Resources

There are several resources available to assist employers in supporting the personnel activated to serve military duty. Among the resources are the following:
  • Military Leave, available from the International Public Management Association for Human Resources, 1617 Duke Street, Alexandria, VA 22314; www.ipma-hr.org

  • Local Vets Offices, available at www.dol.gov/vets/aboutvets/contacts/ main.htm

  • National Committee for Employer Support of the Guard and Reserve Employers, 1555 Wilson Boulevard, Suite 200, Arlington, VA 22209; www.dmdc.osd.mil/




Freedom Awards-Employers Who Go Above and Beyond

Fifteen employers from across America received the Secretary of Defense Employer Support Freedom Award at the Ronald Reagan Building in Washington, D.C., September 21, 2004. Freedom Awards are given to employers who “go above and beyond” in supporting Guardsmen and Reservists called to active duty. Seated third from the right is Los Angeles County Sheriff Leroy D. Baca. Photograph by Sergeant First Class Guadalupe Stratman, photographer for the National Committee for Employer Support of the Guard and Reserve (ESGR).


 

From The Police Chief, vol. 71, no. 11, November 2004. Copyright held by the International Association of Chiefs of Police, 515 North Washington Street, Alexandria, VA 22314 USA.








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