F. Military Leave

Military leave policies often impact smaller companies quite severely. Small employers must deal with the loss of key employees, executives and supervisors for extended periods of time and many companies are unsure of the legal ramifications concerning job vacancies, benefits and related issues. The Military Selective Service Act, originally enacted June 24, l948, and amended several times, delineates reservists' rights and must be followed by companies with reservist status employees. It requires that public and private employers grant a leave of absence to reservists and members of the National and Air National Guard who were permanent employees for weekly and weekend drills, summer camps, and other types of training duty and emergencies.

Extended Reserve Duty Reservists are not required to give the employer any advance notice of call-up, nor are they required to provide the exact date when they will return. However, under normal circumstances, if asked, employees may be able to furnish employers with the approximate beginning and ending dates of the training and the appropriate travel time involved to allow an employer to adjust work schedules and meet the needs of the reservist and the company. An important aspect of the law is that companies are not required to pay employees who are on military leave. Although optional, some employers voluntarily make up the difference between typically lower military pay and the civilian salary on a short-term basis depending on the company's commitment to civic duty and ability to compensate.

TIP: A company is prohibited from forcing an employee to use vacation time for military training.

Protected Jobs Employers must assist reservists when they return and cannot deny promotions, seniority or other benefits because of reserve obligations. For example, if an employee was promoted right before the call-up or promised a raise, he or she should receive a job in line with the promised promotion and raise upon return. Additionally, upon the reservist's return, the company must reinstate all benefits plus offer those benefits (e.g., additional pay) that would have been earned if the reservist had continued actively at work. The Military Selective Service Act provides that employees who are in military service are regarded as being on an unpaid leave of absence from their civilian employment. Even if they are in military service for a period up to four years or if they are called up for short-term emergency duty merely to serve in a motor pool across town rather than in a distant location, they must be offered a job with the same pay, rank, and seniority upon their return. This federal law does not require a company to give the reservist back the same job, but one that is similar in pay, rank and seniority. A reservist must apply for reinstatement to his or her employer in a timely fashion. Following release from duty, reservists may take as much as 90 days of unpaid leave time to be with their families or become reaccustomed to civilian life, if they wish. However, if they want to return to work immediately (even the day after they come home), the employer must take them back immediately. These re-employment obligations extend to new owners of a company and companies previously or presently in bankruptcy, as long as the company maintains a payroll.

TIP: The only exception is for reservists with dishonorable discharges. In these rare cases, employers may not have to re-hire the individuals and employ them for at least one year, but speak to counsel because the rules are tricky. Any company not following the above guidelines is subject to investigation and action by the local U.S. Attorney's office. Charges can also be brought under The Veteran's Benefits Improvement and Health Care Authorization Act of l986 and The Veteran's Re-employ- ment Rights Act. These laws prohibit discrimination in all aspects of employment, including hiring, promotions and discharge, on the basis of membership in the military reserve or National Guard.

Counsel Comment #99: Companies which receive job applications from reservists and don't hire them must fully document the reasons for denial. Be sure to verify that adverse employment selection decisions are based on factors other than the applicant's belonging to the military, such as that another candidate had more experience or training and was better qualified. This may reduce charges of potential violations which are often the target of investigations.

Legal Remedies Any individual denied the benefits to which he or she is entitled under these laws may file a motion, petition, or other appropriate pleading in the federal district court sitting in any district where the employer maintains a place of business. Companies with operating subsidiaries or sales offices in different cities can be served from legal authorities in any of these locations. An individual may also apply for the aid of the U.S. Attorney or a comparable official who, if reasonably satisfied that the person is entitled to the benefits or was denied employment because of military status, shall act on the complainant's behalf in seeking a settlement of the claim or in representing the individual in any judicial proceeding.