Job Rights For Reservists And
Members Of The National Guard

SEYFARTH, SHAW, FAIRWEATHER & GERALDSON

On Wednesday, August 22, 1990, President Bush activated nearly 50,000 reservists and National Guard Members (collectively, the "reservists") to support U.S. military forces in the Middle East. These reservists began receiving orders to report for active duty on Friday, August 24, 1990, and it is possible that additional reservists may be activated in the future. The President has the authority to call up to 200,000 of the Nation's 1.7 million reservists without congressional approval.

As a result of the President's decision to activate military reservists, a number of questions have been raised by employers regarding military leaves of absence and veterans' reemployment rights. The Veterans' Reemployment Rights Act of 1958 (the"VRRA" or the "Act"), as amended, prohibits discrimination against employees who leave their jobs to serve in the Armed Forces and establishes a comprehensive set of statutory reemployment rights. The purpose of the Act is to ensure that veterans suffer no detriment for having left their civilian employment to serve in the Armed Forces. Significantly, the rights of reservists who are called to active duty do not generally differ from the rights of inductees, unless otherwise specified.

COMMONLY ASKED
QUESTIONS AND ANSWERS

1. QUESTION: What employers are covered by the VRRA?
ANSWER: The VRRA applies to all public and private employers.

2. QUESTION: What employees have rights under the VRRA?
ANSWER: All employees whose employment is "other than temporary" when they are called to duty have rights under the VRRA. Courts interpreting the Act have defined "temporary" very narrowly and have accorded "other than temporary" status to short-term seasonal employees and persons who are employed pursuant to contracts for a specified term. Employers should seek legal advice before concluding that a position is temporary.

3. QUESTION: Is an employer required to grant a military leave of absence to a reservist called to duty?
ANSWER: Yes.

4. QUESTION: May an employer deny military leave to an employee who volunteers for active duty?
ANSWER: No. The VRRA accords the same rights to volunteers as to those who serve involuntarily.

5. QUESTION; Are there different types of duty that a reservist can be called up to perform?
ANSWER: Yes. A reservist is called to "initial active duty training" when he or she first joins the Reserve or National Guard. Other training categories are "active duty for training" and "inactive duty training" (drills). A reservist also may be called to "active duty" for a period not to exceed 90 days or for an indefinite period. These service categories help determine a reservist's rights under the VRRA.

6. QUESTION: Are employees who are called to duty required to give their employers notice in order to preserve their rights under the VRRA?
ANSWER: This depends on the nature of an employee's orders. Employees who are called to "active duty" are not required to give notice. Similarly, employees who are called to "initial active duty training" are not required to give notice. In contrast, employees who are called for "active duty for training" or "inactive duty training" are required to notify their employers, although the Act does not describe how much notice is necessary. Employers should request affected employees to give as much advance notice as possible. The U.S. Department of Labor, Veterans' Employment and Training Service, also encourages reservists to provide advance notice whenever practical.

7. QUESTION: May an employer demand to know when an employee anticipates returning from a military leave?
ANSWER: No.

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8. QUESTION: Must an employer pay an employee during his or her military leave of absence?
ANSWER: No. Some employers do, however, voluntarily pay reservists the difference between their military and civilian pay as a matter of policy.

9. QUESTION: Must an employer continue to provide health insurance coverage to employees on military leave of absence?
ANSWER: The answer depends on what the employer's policy is regarding continuation of health insurance benefits during other unpaid leaves of absence. If the employer typically continues coverage for employees on non-military leaves, it must also continue coverage for employees who are on military leave. If the employer's policy is not to continue coverage during leaves, it need not do so for those on military leave.

The military provides basic insurance coverage to reservists immediately upon calling them for duty and to their dependents 30 days later. The military does not provide dental or vision coverage.

Upon an employee's return to his or her civilian employment, health insurance coverage must be provided immediately even if it is the employer's policy to require new or returning employees to complete a waiting period prior to qualifying for coverage. Moreover, the employer may not exclude a pre-existing condition from coverage if the condition arose during the employee's tour of duty.

10. QUESTION: Must an employer reinstate a returning veteran to his or her prior position?
ANSWER: An employer must reinstate a returning veteran to his or her prior position or to a position of "like seniority, status, and pay" as if his/her work had not been interrupted by service in the Armed Forces. If a veteran is unable to perform the duties of his or her prior position due to a disability sustained during his/her military leave, an employer must provide the veteran with a position that he/she is qualified to perform, if such a position exists. Moreover, the position must provide the disabled employee with like seniority, status and pay as his/her prior position, or the "nearest approximation thereof."

On the other hand, an employee who would

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have been laid off or discharged but for his/her military leave of absence may not be entitled to reinstatement upon his/her return. Employers should consult with counsel before determining that a returning veteran is not entitled to reinstatement.

11. QUESTION: If an employer gives raises to all employees while an employee is on military leave, is the employee on leave also entitled to higher pay upon his or her return from duty?
ANSWER: Yes. Answers to questions of this nature require applying the "escalator" principle — that returning veterans are to be treated by their employers as if they had never left with respect to compensation, benefits, seniority, promotions, and the like. Employers should consult with counsel about the escalator principle's application.

12. QUESTION: Are any other employment rights or benefits protected by the Act?
ANSWER: Yes. An employee cannot be denied a promotion or any other advantages that he/she would have received if he/she had not been called to duty.

13. QUESTION: What if an employer has sold its business?
ANSWER: Purchasers of businesses are bound by a predecessor's obligations under the VRRA.

14. QUESTION: Does a returning veteran have to apply for reemployment?
ANSWER: This depends on a veteran's service category. If the veteran is returning from "active duty for training" or "inactive duty training," he or she need not reapply, but must simply report for work on the next regular work day after the last day of travel. A reservist who was ordered to active duty for not more than 90 days or a veteran returning from "initial active duty training" must apply for reemployment within 31 days of release from duty. Such a reservist has up to one year to reapply if he/she is hospitalized incident to his/her service in the Armed Forces and spends that year in the hospital. All other returning veterans have 90 days

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from release from duty or discharge from hospitalization (for up to one year after discharge) to apply for reemployment.

15. QUESTION: How long must an employer keep a job open for a reservist?
ANSWER: Usually four years, although this period may be extended to five or even six years under certain circumstances. Of course, an employer may temporarily fill a job left open by an employee on military leave.

16. QUESTION: Can an employer require an employee to use his or her accrued vacation for a military leave of absence?
ANSWER: No. Employees may, however, use vacation time if they so desire.

17. QUESTION: Must benefits such as vacation and sick days continue to accrue during an employee's military leave of absence?
ANSWER: This depends on an employer's policies. Benefits that accrue merely by virtue of continued employment must accrue during a military leave of absence. Benefits that require more than simple continued status as an employee to accrue, i.e., benefits that accrue by virtue of completing a bona fide work requirement, are not protected by the VRRA.

18. QUESTION: Is a veteran entitled to any special treatment upon his/her return to civilian employment?
ANSWER: This depends on a veteran's service category. Reservists whose orders were for active duty of not more than 90 days or for "initial active duty training" cannot be discharged "without cause" for six months after reemployment. Veterans returning from "active duty for training" or "inactive duty training" have no special discharge protection. All other veterans are protected from discharge without cause for one year after reemployment.

This review of the VRRA is intended as an overview of key provisions of that Act. If you need additional information or assistance in applying general rules to specific cases, please contact any of the following attorneys: William P. Schurgin, Lisa A. Lopatka, Douglas A. Darch or Jeffrey K. Ross in Chicago; Donald L. Rosenthal in Washington, D.C.; Raymond R. Kepner in Los Angeles; or William J. Dritsas in San Francisco. •

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