Military leave / USERRA - Summer 2014

Russ Samson Iowa Employment & Labor Law Dickinson Law Firm Des Moines Iowa

Posted on 06/16/2014 at 07:35 AM by Russell Samson

On Thursday, June 12, 2014, Iowa Employer Support of the Guard and Reserve (ESGR) sent an email asking for help in curbing an upswing in what it calls challenges between military employees and their employers. Iowa ESGR notes that in 2014, the Iowa National Guard, in particular has a training schedule that may be and is challenging to many employers. Specifically identified were additional duty days for a drill weekend, additional Annual Training days, and multiple Annual Training periods necessary to maintain mission requirements as more contributions are asked of Guard and Reserve groups due to the downsizing of Active Duty forces. As a reminder, Section 4312 of the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) -- 38 U.S.C. 4312 -- gives an employee the right to be granted leave from a position of civilian employment in order to perform service in the uniformed services, and then to return to the civilian employment after completing the period of service. The statute's definition of service in the uniformed services found at 38 U.S.C. 4303(13) -- specifically includes inactive duty training (e.g., week-end drills), as well as active duty, active duty for training, initial active duty training, and other forms of service. While the focus of the communication was on USERRA, Iowa employers are reminded that Chapter 29A of the Iowa Code imposes requirements on Iowa private sector employers for military leaves of absence, with the somewhat general directive that the leave, 'shall in no way affect the employee's rights to vacation, sick leave, bonus, or other employment benefits relating to the employee's particular employment.' The Iowa ESGR email said the recent upswing in complaints appeared to be based not on conduct of human resources professionals or of upper executives, but on the conduct of front line supervisors, especially persons newer to that role. Iowa ESGR would have employers remind supervisory employees that an employer cannot ding, dismiss, demote or give demerit points based on military obligations.' Iowa ESGR identified the following conduct as being NOT compliant with USERRA:

1. Requiring the service member to find a replacement for the scheduled shifts s/he will miss due to military leave.

2. Giving points under attendance disciplinary systems for time away from work due to military obligations.

USERRA does not require an employer to pay an employee for time away from work for uniformed service. The employer is only required to grant unpaid leave. In addition, the United States Supreme Court in Monroe v. Standard Oil Co., 452 U.S. 549 (1981) determined that employers have no obligation to rearrange schedules so that employee-reservists have the opportunity to work the same number of hours, or earn the same amount of pay, that they would have but for the military absence. Although that case was decided under the military leave statute that pre-dated USERRA, the case is still good law under USERRA. An employer can, however, permit a 'military leave' employee to 'trade time' with other employees – and indeed, under 38 U.S.C. 4316(b)(1), an employer may be required to do so under USERRA if it has a general policy on this point. An employer can also give 'military leave' employees the opportunity to voluntarily make up the missed regularly scheduled hours. But an employer which requires an employee to rearrange a schedule, or work additional hours such that there are no total hours missed is NOT giving the employee a 'leave' so s/he can be 'absent from a position of employment. On its website, Iowa ESGR has a litany of questions frequently asked by employers, and answers to them. In addition to properly managing leaves, an Iowa employer may want to have its front-line supervisors -- those who can 'ding' an employee for military leave  review these FAQs, or better yet, provide more detailed training on USERRA. And remember that employees in military service are protected from discrimination based on their military service. To assist with compliance, an Iowa employer may wish to remind its supervisory employees to keep personal comments to themselves if they might indicate negativity about military leaves including not making or replying to comments on social media.  

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.

- Russ Samson


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