Revisiting USERRA
By G. Phillip Shuler
In a previous article in the months following the Sept. 11
attacks, we highlighted the Uniformed Services Employment
and Re-employment Rights Act (USERRA), which provides certain
protections for employees in the armed services. Now that
the U.S. is actively engaged in a war with Iraq - and many
of you may have employees who are reservists - it might be
beneficial to revisit USERRA to make sure that you are doing
all that you must to comply with this federal law.
First, let's identify just who is covered under USERRA. The
Act covers employees on "qualified military service"
which means service in "uniformed services," either
active or inactive duty. "Uniformed services" includes
the Army, Navy, Marine Corps, Air Force, Coast Guard, Public
Health Service Commission Corps and the reserve components
of those services, as well as training or service in the National
Guard or Air National Guard. Most private and government employers
are subject to the Act.
Let's talk about the respective obligations of the employee
and employer under USERRA. First, an employee must give notice
of impending military service, receive an honorable or general
discharge from the military, and promptly return to work.
Just how soon an employee must return to work following a discharge
from the service depends on the length of the service. If the
employee's service was less than 31 days, he or she must return
to work the first day after completion of service. If the service
was more than 30 days but less than 181 days, he or she must
submit for reemployment within 14 days after the completion
of service. And if the service was more than 180 days, he or
she has 90 days following completion of service to submit for
re-employment.
What rights does an employee have under USERRA? Well, assuming
that he or she satisfied all of the criteria listed above, the
employee is entitled, first, to re-employment. This means you
must offer jobs to your employees returning from military service.
Just what job the returning employee is entitled to, and salary
and seniority issues, depend in part on the length of military
service. If you have a health plan, you must offer continuing
medical coverage to them for up to 18 months while in the service,
with restrictions on how much you charge them for it.
As a plan sponsor of a qualified benefit plan, you must count
their military service as a time of employment for purposes
of eligibility, vesting and benefit accruals under your qualified
plans. Don't treat their military leave as a break in service.
If you maintain salary deferral or 401(k) plans, upon re-employment,
your military employees are entitled to 'catch up' on their
401(k) contributions by contributing the amount that they could
have contributed during their military service. And you must
credit your military employees for all months of military service
for purposes of determining eligibility under the Family and
Medical Leave Act (FMLA).
These are just some of the rights and obligations of employees
and employers under USERRA. Of course, the law is detailed,
and the general rules set forth above should not be relied upon
as legal advice. If you have an employee who may qualify for
USERRA protection, you would do well to run any important employment
decisions that affect that employee by a competent attorney
to ensure USERRA compliance.
Really expensive phone calls. OK, only employers whose employees
have cell phones and cars need to read this next note. That's
just about everybody, right? Here's the problem. There is, apparently,
an epidemic of distracted driving. The concerns are obvious:
folks who are busy yapping on their cell phones pay too little
attention to where they are going. They cause wrecks and hurt
people. And if these cases are any indication, you'll be the
one paying - big.
A motorcyclist was struck and killed by a Smith Barney broker
who was driving while doing business on his cell phone. The
family sued; Smith Barney paid $500,000.
The state of Hawaii paid $1.5 million because one of its employees,
a teacher in a public school, was driving while talking on her
cell phone and she ran over a man walking along the highway.
A jury ordered an Arkansas lumber company to pay $21 million
dollars to a 78-year-old woman who was disabled after her car
was struck by a car driven by a salesman on his cell phone.
The case was eventually settled - for $16.2 million dollars.
It is not enough to argue that an employer should not be
responsible for an employee's careless driving. There are
laws and legal theories that oftentimes impute employee negligence
to an employer. Others may say that there are too many rules
in the workplace already, and it is simply not feasible to
institute an employment policy that forbids distracted driving.
There may be some truth to this. But if the cases cited above
are any indication, it may just be time for employers to strongly
consider instituting policies and taking real steps to make
sure that their employees don't put lives, and the company,
at great risk by talking and driving.
What can you do? Here are some suggestions:
- Completely ban the use of cell phones while driving
- Ban dialing while driving
- Require the use of a hands-free headset while driving
- Notify employees that they are neither required nor expected
to use a cell phone while driving
- Require that employees park before using a cell phone.
Editor's Note: G. Phillip Shuler is a partner in the New
Orleans office of Chaffe, McCall, Phillips, Toler & Sarpy.
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