Heyl Royster

 

Military Leave Obligations for Public Employers

As a public employer in Illinois, are you aware of your rights and responsibilities when an employee is called to military service? While there are dozens of laws that protect the rights of service members and their families there are also laws that dictate how employers, particularly public employers, must compensate and preserve the rights of military employees.

The Uniformed Services Employment and Reemployment Rights Act of 1994 is the principal federal law ensuring that persons who serve or have served in the Armed Forces, Reserves, National Guard or other “uniformed services”: (1) are not disadvantaged in their civilian careers because of their service; (2) are promptly reemployed in their civilian jobs upon their return from duty; and (3) are not discriminated against in employment based on military service. 38 U.S.C. § 4301–4335.

USERRA states that if a member leaves his civilian job to perform military service, he is entitled to return to that employer, with accrued seniority, if he meets the following criteria:
  1. The service member held a full or part-time civilian job before beginning the period of military service. 38 U.S.C. §4312(d)(1)(C)
  2. The service member gave notice that he would be leaving for training or service.Notice must be given in advance, unless impossible under the circumstances or due to military necessity. 38 U.S.C. §4312(a)(1) and §4312(b).
  3. The member’s military leave cannot exceed a five-year limit, with exceptions for war or national emergency. 38 U.S.C. §4312(a)(2).
  4. The member must be released with an Honorable or General discharge.38 U.S.C. §4304.
  5. The member must report back to work or make a request for reemployment within certain time frames:
a.  For service of 30 days or less, the member must report back to work on the next regularly scheduled work day after (i) transportation back home plus (ii) an 8 hour rest period. 38 U.S.C. §4312(e)(1)(A)(i-ii).
b.  For service ranging from 31-180 days, the member must report for work or apply for reemployment no later than 14 days after completion of service. 38 U.S.C. §4312(e)(1)(C).
c.  For military service of 181 days or more, the member must report for work or apply for reemployment not later than 90 days after completion of service. 38 U.S.C. §4312(e)(1)(D).
d.  The time to report to work or apply for employment is extended if the member is recovering from an illness or injury that occurred during their military service. 38 U.S.C. §4312(e)(2)(A).
If a member fails to report to work within the timeframes allotted, the member does not forfeit his or herrights and benefits under USERRA, but is subject to the employer’s rules concerning absences from work. 38 U.S.C. §4312(e)(1)(3).

If a member meets the criteria for reemployment rights under §4312, he will be reemployed according to the priorities outlined under §4313:

  1. For service of 90 days or less, the member is entitled to reemployment in the same position he left or in a position of like seniority, status and pay. 38 U.S.C. §4313(a)(1)(A-B).
  2. For service of 90 days or more, the member is entitled to reemployment in the same position in which the member would have been employed if their employment had not been interrupted by military service or in a position of like seniority, status and pay, if the person is qualified to perform the duties. 38 U.S.C. §4313(a)(2)(A). In other words, if the service members’ peers were promoted and given raises, then the returning member is entitled to the same. If the service member is entitled to a position which he is not qualified to perform, the employer has a duty to take reasonable efforts to train.
  3. For a member that is disabled due to military service, the employer must make reasonable accommodations for the disability and reemploy the member in the position to which is the nearest approximation to the position they would have held but for the service. 38 U.S.C. §4313(a)(3)(A-B).
Section 4313 does not give a definitive timeline for when employers must reemploy members. It only states when members must report back for work. It does state they must be reemployed “promptly.”

While reemployment of the service member is the general rule of USERRA, §4313 does contain limited exceptions when the original employment was temporary or the employer’s circumstances have changed to an extent which would make reemployment impossible or unreasonable or impose an undue hardship on the employer.38 U.S.C. §4312(d)(1)(A-C).

USERRA not only protects employment rights, it protects employment benefits as well. For example, §4316 states that while service members are performing military service, they are considered to be on furlough and the member is entitled to the most favorable seniority rights that are provided to other employees on non-military leave of absence. 38 U.S.C. §4316(a) and (b)(1)A-B).

While members are entitled to use paid time off (vacation, sick, personal, etc.) while they are on military service, an employer cannot require them to use it. 38 U.S.C. §4316(d).

For military service periods of 30 days or less, the employer must continue the service member’s health insurance and may only charge the member the employee’s share, if any, for coverage. 38 U.S.C. §4317(a)(2). For military service periods of 31 days or longer, the service member can continue coverage for up to 24 months, however, the employer can charge up to 102% of the full premium under the plan. 38 U.S.C. §4317(a)(1)(A-B) and §4317(a)(2). Upon return to employment, the member is entitled to reinstatement of healthcare coverage, if there was a lapse, with no waiting period and no exclusions. 38 U.S.C. §4317(b)(1).

Service members also have a right to continued service credit for any pension plans. 38 U.S.C. §4318(a)(2)(A). Both members and employers are liable for their respective portions of the pension contribution for the military service period once the member returns to employment. §4318(b)(1).

USERRA also protects the service member from termination upon reemployment. Members who serve a period of 31-181 days cannot be discharged when they return to employment, except for cause, for a period of 180 days following reemployment. 38 U.S.C. §4316(c)(2). Employees who serve 181 days or more cannot be discharged, except for cause, for a period of one year following reemployment. 38 U.S.C. §4316(c)(1).

While most employers proudly support their service member employees, there are occasions where a member looks to outside assistance to enforce USERRA rights.Subchapter III of USERRA is dedicated to the procedures for assistance, enforcement and investigation. 38 U.S.C. §4321 to §4327. In general, a service member who believes his or her rights have been violated can contact the Employer Support of the Guard and Reserve (ESGR) where an ombudsman will contact the employer and attempt to informally resolve the problem. The service member also has a right to file a complaint with the U.S. Department of Labor, Veterans’ Employment and Training Service (VETS). While service members often enforce USERRA through the VETS program, they are not required to and can retain an attorney and initiate legal action against their employer at any time.

Finally, while USERRA allows State and local laws to supplement the minimum regulations set forth in USERRA, it supersedes any laws that attempt to eliminate or diminish the benefits contained in USERRA. 38 U.S.C. §4302(a). Therefore, employers need to be familiar with specific Illinois laws and any local regulations that involve military benefits.

The Illinois Human Rights Act prohibits discrimination based on race, color, religion, sex, national origin, ancestry, age, order of protection status, marital status, physical or mental disability, military status, sexual orientation, or unfavorable discharge from military service in connection with employment, real estate transactions, access to financial credit and the availability of public accommodations. 775 ILCS 5/1-102. While USERRA and the Illinois Human Rights Act apply to all employers, Illinois also has statutes that apply only to public employers with Guard and Reserve employees.

Unlike USERRA, which does not require employers to pay service members compensation when they are called into active duty, the Local Government Employees Benefits Continuation Act states that any employee of a local government who is a member of the Guard or Reserve and is called into active service shall receive his or her regular compensation minus the amount of military pay. 50 ILCS 140 et. seq. Health insurance and other benefits also must continue during the time of active service.When a collective bargaining agreement or an employment policy is more generous than the Act, the agreement or policy will control. The only exemption from the Act is when 20% or more of the employees are mobilized. Then the local governmental body does not have to comply the Act. 50 ILCS 140/2.

The Municipal Employees Military Active Duty Act authorizes a local public body to make pension payments on behalf of service members during periods of active duty, in lieu of normal pension deductions from the employee’s salary. 50 ILCS 120/3. Similar to USERRA, the Act also contains language restoring service members to their positions without loss of seniority, just as if they had been continuously employed by the municipality. 50 ILCS 120/2. The definition of municipality is unusually broad under the Act, making it clear the Act applies to all public bodies, not just municipalities. 50 ILCS 120/4.

The Public Employee Armed Services Rights Act protects (1) insurance coverage and its continuation immediately upon reemployment, (2) pension rights and (3) employment and promotional rights for employees who are called to active duty. It entitles the member to any promotion, pension or contractual benefit that would have accrued while the member was gone on active duty. 5 ILCS 330/5 et. seq. Unlike the Municipal Employee’s Military Active Duty Act, which has a broad definition, this Act defines “public employee” as one who is employed by the State or any state agency, a unit of local government or a school district. 5 ILCS 330/3.

Illinois public employers should also be aware of the financial requirements of the Military Leave of Absence Act. 5 ILCS 325 et. seq. The Act is similar to USERRA by providing protected leave from employment for time spent in active service and training and provides that seniority and other benefits continue to accrue while serving. 5 ILCS 325/1(a)(1-4). The Act applies to all State of Illinois, local government, school districts or higher education employees.

While the Local Government Employees Benefits Continuation Act provides compensation for service members who are called to active duty, the Military Leave of Absence Act also requires a public employer to compensate a member for training activities. Section 325/1(a) of the Military Leave of Absence Act provides the following in regards to compensation for training:

During leaves for annual training, the employee shall continue to receive his or her regular compensation as a public employee.During leaves for basic training, for up to 60 days of special or advanced training, and for any other training or duty required by the United States Armed Forces, if the employee’s daily rate of compensation for military activities is less than his or her daily rate of compensation as a public employee, he or she shall receive his or her regular compensation as a public employee minus the amount of his or her base pay for military activities. 5 ILCS 325/1(a)
To Illinois public employers, knowing the classification of the training your member is attending is key to getting payroll right and avoiding violations of the statute. When a member is gone for annual training, they must be paid their regular compensation. There is no off set for military pay.

Neither USERRA nor any Illinois statute defines “annual training.”One can look to the federal code section that implements training requirements for the National Guard to better define annual training. 32 U.S.C. §502(a)(2) requires a member to “participate in training atencampments, maneuvers, outdoor target practice, or other exercises, at least 15 days each year.”

For all basic, special, advanced and any other training, the employer must pay the member regular compensation with an off set for military pay. To illustrate, consider Firefighter Smith who is employed by the City of Blazeville. If Smith’s normal 24 hour shift falls on a weekend that is scheduled for weekend training (otherwise known as “drill”), Blazeville would have to pay Smith for the twenty-four (24) hour shift that was missed, but would be able to deduct any military pay. If Smith’s regular compensation was $600 ($25.00 per hour for 24 hours) but the military compensated Smith with $150, then Blazeville would only pay Smith $450.

Similar to the Local Government Employees Benefits Continuation Act, the Military Leave of Absence Act also provides compensation for members called to active duty, but allows for an off set of military pay. 5 ILCS 325/1(b). Keep in mind that depending on rank and length of service, it is possible for an employee to have active duty pay exceeding his or her regular compensation.In those instances, the employer does not have to make regular compensation payments to the member.

There is one final point to the Military Leave of Absence Act of interest to public bodies near Illinois borders. In 1991, Attorney General Roland Burris issued an opinion that the Act applies to employees of the State of Illinois who were members of the National Guard units of other states. The pay provisions of the Act apply even if your member is a Guard or Reserve member in another state. 1991 Ill.Atty.Gen.Op. 36 (Ill. A.G.), 1991 WL 495498.

Quick Reference for Illinois Public Employers of Guard and Reserve Members

  • Active Duty. When an employee is called to active duty, the public body pays the employee the regular rate of compensation, less the employee’s base military pay.
  • Annual Training. When an employee reports for annual training, the public body pays the employee their regular compensation during the fifteen (15) day period of annual training. There is no off set for military pay.
  • Basic, Special, Advanced or Other Training (including weekend drill). When an employee reports for any training (other than annual training) the public body pays the employee their regular rate of compensation, less the employee’s base military pay.
  • Paid Time Off (PTO). When an employee is required to report for active duty or training, the public body must grant his or her time off and cannot require the employee to use PTO.An employee may elect to use PTO.
  • Health Insurance. If an employee is in military service less than 31 days, the employer can only charge him/her the employee’s share (if any) of the cost of the coverage. If the period of service is 31 days or more, the employer is permitted (but not required) to charge the employee up to 102% of the entire premium, including the part that the employer normally pays.
  • Pension.The period of military service cannot be considered a break in service for vesting and accrual purposes. If an employee elects to continue making pension contribution plans while on military duty, the employer is also required to make the employers’ proportionate share for that time period, but is only required to actually fund the pension once the employee returns. The employee is given a grace period (up to 5 years) after returning to make up the contributions.
  • Reemployment.  In general, public bodies must reemploy the employee upon return from active service.
  • Employer Support of the Guard and Reserve (ESGR). The ESGR is a good resource for employers with questions specific to USERRA. They operate outreach and education programs for employers and employees. You can view the webpage at http://www.esgr.mil.