Reservists and National Guard rights of re-employment after call-up to military active duty under USERRA. This Act easily allows employers to avoid rehiring reservists and guard members. Hugh D. Cox, Attorney in Greenville NC, proudly representing the disabled for rightful veterans benefits, Social Security benefits and Workers Compensation throughout  North Carolina








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Reservists/Guard Rights
when called to Active Duty

"RIGHTS" OF RESERVISTS AND NATIONAL GUARD MEMBERS
CALLED TO ACTIVE DUTY FOR THE WAR ON TERRORISM

   Since the Persian Gulf War, "Desert Storm" in 1990 - 1991, the rights of military reservists and national guard members are further reduced. Although the military "brass" and employers will tell those called up to active duty that they have the right of re-employment in the same job with promotions and seniority by the same employer when released from active duty, the employer can easily avoid this "right" by claiming that the job was eliminated, redefined, or there was a layoff. Reservists and guard members can anticipate unethical employers will initiate layoffs and will redefine job titles to avoid re-hiring reservists and guard members once released from military duty.  

    This applicable law is called Uniformed Services Employment and Re-employment Rights Act of 1994 (USERRA). This act states that employees called to active duty retain their employment status, including promotion and seniority, during active duty.  Those called to active duty will find the "devil" in the details of USERRA.

    See: http://www.dol.gov/asp/programs/handbook/userra.htm for a summary of USERRA provisions.

    Thanks to USERRA ( a "loophole" act to help corporations rather than reservists and guard members), no federal agency has any responsibility that will assist any reservist or guard member in re-employment litigation. 

     USERRA rights are supposedly protected by the U.S. Office of Special Counsel, (OSC). See:  http://www.osc.gov/userra.htm . OSC is a federal organization charged with representing federal employees who file a USERRA claim.   OSC's performance has been criticized by the GAP: "Unfortunately, the OSC's track record for living up to its promise is poor. With some exceptions, the OSC has seldom made the decisions necessary to trigger serious evaluation of wrongdoing and corrective action. In general, these flaws in the system mean that an OSC whistleblowing disclosure is likely to be a waste of time or even counterproductive--unless it is part of a larger strategy involving other institutions, such as the media or the courts."

     Those called up to active duty are "unemployed" in the civilian sector if the employer so wishes. A few corporate manipulations easily defeat USERRA. Redefined jobs, eliminated jobs, and layoffs are not protected by USERRA.

     Reservists or guard members called to active duty MUST notify employers of "military call-up" immediately or the employee's rights under USERRA can be denied. For re-employment rights after release from active duty under USERRA, the employee MUST notify the employer immediately (1st work day after active duty of 31 days or less, 14 days after active duty of 31 to 180 days, etc.) after release from active duty.

    Guard and Reservists should never "resign" from a job position when called to active duty. Employers should be notified in writing that the employee has been "called to active duty requiring job absence due to military service". If a reservist or guard member volunteers for duty duty while waiting to be called, the same procedure should be followed.  USERRA makes no distinction between involuntary and voluntary callup.

   Employers are NOT required to make up any difference in pay between civilian job pay and military pay. Some States have such laws, but they are almost never enforced.

    The employee retains vacation, annual leave and other such benefits while on active duty.

    A reservist or guard member can "keep" personal and family health insurance from the employer under COBRA (Congressional Omnibus Budget Reconciliation Act) for a period of up to 18 months. COBRA does not apply to an employer with less than 20 employees. The financial difficulty with this arrangement is that the reservist or guard member must pay "market rates" ( that rate is actually 102% of market rates) for the continued COBRA health insurance - rather than the reduced employer "group" rate paid while employed.

    While on active duty, military members are entitled to have all health care needs met. The military member's dependents are entitled to health care through TriCare, a government funded HMO at  locations throughout the nation. 

    Most reservists and guard members will want to opt for TriCare since it is relatively cheap and the care is comprehensive. Unfortunately, TriCare does not pay for medical care until after the reservist / guard member has been on 30 days of active duty. Reservists and guard members MUST carry health care insurance through COBRA until TriCare is available - unless some other form of health insurance is available.

CAUTION: A reservist or guard member whose dependent has a serious health problem MUST consider continuing to pay for job-provided civilian health insurance through COBRA while on military active duty.

    USERRA supposedly permits the returning military veteran employee to have the employer's sponsored health insurance reinstated to the same degree of coverage for the employee's family and dependents as before deployment. This "right" presumes reemployment.

   Reservists and guard members who have family members with a health diagnosis requiring intensive or expensive care MUST keep their COBRA coverage in place to avoid losing civilian health insurance for that diagnosis - if there is a chance the employer will eliminate the job during the employee's active duty. For instance, a reservist's spouse with multiple sclerosis (MS) will be treated for MS under TriCare. Unfortunately, the spouse will probably NOT be re-insured by any private health insurance for multiple sclerosis AFTER release from active duty if the employee's job is eliminated, redefined, or there is a layoff. The health insurance company will claim the MS "pre-existed" coverage and the MS will most likely be denied as "covered". COBRA, on the other hand,  requires that subsequent health insurance companies continue to cover pre-existing medical conditions.

This information was compiled by Hugh D. Cox, Attorney at Law in Greenville, North Carolina and may be distributed as a public service to the nation's reservists and guard members.

Other excellent and comprehensive information about USERRA Rights can be found at:

http://www.roa.org/home/callup2.asp (CAPT Samuel F. Wright of the Reserve Officers Association [ROA] is a foremost expert on USERRA. His superb law review articles posted on the Reserve Officers Association web site are the most insightful and inclusive collection about reservist call-up on the Internet. For more outstanding ROA legal reviews by CAPT Wright on similar subjects, see: 
 http://www.roa.org/home/law_review_archive.asp )

http://www.esgr.org/employers/thelaw.asp 

(updated on November 16, 2003)

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