Given the recent events in New York City and the prospect of swift military action, many employees who serve in the uniformed services, as reservists or on active duty, will likely require leave for military service. When faced with a request for military leave, employers have special statutory duties and responsibilities set forth in the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the New York State Soldiers' and Sailors' Civil Relief Act. These statutes are designed to provide both private and public sector employees with certain job protections and prohibit discrimination against employees and job applicants who serve in the military. When state and federal laws overlap, federal law requires that employers provide the greatest protection available. The following is a summary of the provisions of both statutes.

USERRA

• Prohibits employers from discriminating against job applicants and employees on the basis of service in the uniformed services, such as the Armed Forces, the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty for training, or full time National Guard duty, the commissioned corps of the Public Health Service, or any other category of persons designated by the president of the United States in time of war or national emergency.

• Entitles employees who serve in the military to reemployment rights provided the employee meets the following conditions: (1) the employee notifies his or her employer in advance of the absence for military service; (2) the employee's cumulative length of absence and all previous absences for military service do not exceed five years; (3) the employee receives an honorable or general discharge from military service; and (4) the employee applies for reemployment within a reasonable period after discharge from the service.

• Employees on military leave must be permitted, at their option, to use any unused, accrued paid time off while on leave.

• Reinstatement must be to the same position that the employee held or would have held with the employer if his or her employment had not been interrupted or to a position with like seniority, pay, and benefits.

• Employees on military leave are provided additional benefit protection. For example, they are entitled to continue their participation in employer provided health insurance benefits for a period of 18 months beginning on the day that their military leave begins. Employees on military leave may not experience a break in service under an employer sponsored pension plan while on leave and must continue to earn service credit for the period of their leave for vesting purposes. Employees on military leave are also entitled to continue to receive employer contributions to a pension or profit sharing plan, except for matching contributions. Employees on military leave are also permitted to make up any elective contributions or deferrals after reemployment.

• An employee who has been reemployed under USERRA cannot be terminated without cause for a 180 days or one year, depending on their length of prior service with the employer.

• Employees who leave the employ of a private employer to perform military service are entitled to reinstatement if the employee: (1) has completed his or her military service; (2) is still qualified to perform the duties of his or her former position; and (3) makes application for reemployment within 90 days after he or she is relieved of military service.

• Reinstatement must be to the same position or a position of like seniority, status and pay unless the employer's circumstances have changed, making reinstatement impossible or unreasonable.

• Employees on military leave must be treated the same as employees on other types of leaves of absence.

• An employee reinstated to his or her former position or a similar position may not be discharged without cause for a period of one year after such reinstatement.

As you can see from this brief description of the rules relating to military leaves of absences, employers have fixed obligations to employees under the law. Furthermore, depending on the particular circumstances surrounding the employee's need for military leave and the employee's return from such leave, exceptions to these rules may apply. During this time of national tragedy and almost certain military action, it is important that employers review their military leave policies and ensure that they are in compliance with both the federal and state statutes. If you would like assistance in reviewing and updating these policies, please contact James A. Spitz, Jr., Melissa A. Fingar, or the Harris Beach attorney with whom you usually work at (716) 232-4440 or (800) 685-1429.

This legal alert provides brief analysis or comments on matters of labor law. This legal alert does not purport to be a substitute for advice of counsel on specific matters.