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LEGAL ISSUES FOR MILITARY LEAVE

 

These days, more and more employers are seeing employees either undergoing military training, leaving for active duty, or returning from military service. It is important to know the basic legal issues associated with employees on military duty. Following is a survey of the most important things to remember.

 

The Basic Law

 

The main law governing the employment rights of employees on military duty is the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), found in Title 38 of the United States Code starting at Section 4301. The law does several things:

  1. Employers must hold open the jobs of employees on military duty and may not otherwise discriminate against them because of their military service. Generally, a job must be held open for up to five years, but during times of a declared national emergency, the time for holding the job open must be extended until the emergency declaration is revoked. This is relevant because the national emergency declared on September 14, 2001 is still in effect.

  2. The law gives that protection to every type and variety of employee.

  3. Upon return from military duty, a veteran or employee who is still in the military is entitled to whatever position he or she would have attained with reasonable certainty if the military service had not occurred. In narrowly-defined situations, a veteran may be given a comparable position as long as the seniority, pay, and status remain the same.

  4. If a replacement employee is laid off due to the rehiring of a veteran and files an unemployment claim, Texas law allows the employer to obtain protection from chargeback of such unemployment benefits.

  5. A veteran may not be discharged or subjected to adverse employment action for one year after the date of reinstatement, except for cause; the same rule applies to service in the reserves or National Guard.

  6. Employers must provide up to 24 months of health plan coverage to employees when they are absent on military leave. When the veteran returns, the employer must immediately cover the veteran under the employer's health plan, assuming the veteran was covered prior to the leave.

  7. Seniority under an employer's pension plan must continue to accrue while the employee is on military duty. To the extent that the employer funds the plan, the employer must continue to fund the employee's participation in the plan.

  8. In general, if a benefit having to do with length of service would have accrued with reasonable certainty, had the veteran been continuously employed by the employer, the employer must award the benefit as if the veteran had been continuously employed.

One can see that the overall thrust of the law is to guarantee the veteran's job during the military duty and to make military-related absences irrelevant for most intents and purposes. In general, the employee who returns from military duty must be in the position that he or she would have been in had there been no military service.

 

The U.S. Department of Labor has a very detailed fact sheet on employers' responsibilities under USERRA on its Web site at http://www.dol.gov/vets/programs/userra/userra_fs.htm. Employers may also call the Veterans' Employment and Training Service for Texas at 512-463-2814 for assistance with USERRA issues.

 

Military Leave Documentation

  1. The basic documentation that can be furnished at the time of giving notice of military duty leave may take any format. Notice of military duty can be oral or written. See DOL regulation 20 C.F.R. § 1002.085:
    http://www.ecfr.gov/cgi/t/text/text-idx?c=ecfr&sid=6905e581c5125c925a25e177f5632911&rgn=div8&view=text&node=20:3.0.6.3.2.3.164.25&idno=20.
  2. Documentation to support reemployment upon the employee's return from military duty may be required by an employer - see DOL regulation 20 C.F.R. § 1002.121:
    http://www.ecfr.gov/cgi/t/text/text-idx?c=ecfr&sid=6905e581c5125c925a25e177f5632911&rgn=div8&view=text&node=20:3.0.6.3.2.3.166.41&idno=20.
  3. DOL regulation 20 C.F.R. § 1002.122 excuses late submission of reemployment-related military paperwork, as long as the delay is not attributable to the employee:
    http://www.ecfr.gov/cgi/t/text/text-idx?c=ecfr;sid=6905e581c5125c925a25e177f5632911;rgn=div8;view=text;node=20%3A3.0.6.3.2.3.166.42;idno=20;cc=ecfr.
  4. Reemployment documents are listed in 20 C.F.R. § 1002.123:
    http://www.ecfr.gov/cgi/t/text/text-idx?c=ecfr&sid=6905e581c5125c925a25e177f5632911&rgn=div8&view=text&node=20:3.0.6.3.2.3.166.43&idno=20.
  5. The Department of Defense regulation on this subject is 32 C.F.R. § 104.6(a)(2)(i)(A) - it strongly encourages employees to give written notice of deployment or duty "since it easily establishes that this prerequisite to retaining reemployment rights was fulfilled":
    http://www.ecfr.gov/cgi/t/text/text-idx?c=ecfr&sid=6905e581c5125c925a25e177f5632911&rgn=div8&view=text&node=32:1.1.1.4.53.0.58.6&idno=32.
  6. Another subsection of that same regulation encourages prompt notice, preferably at least 30 days in advance: 32 C.F.R. § 104.6(a)(2)(i)(B) - "Regardless of the means of providing advance notice, whether written or verbal, it should be provided as early as practicable. DoD strongly recommends that advance notice to civilian employers be provided at least 30 days prior to departure for uniformed service when it is feasible to do so."
  7. DOD has a sample written notice form for employees to use - here is the link:
    http://www.ecfr.gov/cgi/t/text/text-idx?c=ecfr&sid=6905e581c5125c925a25e177f5632911&rgn=div9&view=text&node=32:1.1.1.4.53.0.58.7.46&idno=32.

 

Duty to Pay Wages?

 

USERRA does not guarantee benefits or compensation that would not have been paid in any event to any employee who was absent for other reasons. For instance, the law does not require an employer to pay an employee on military leave for the time off. Section 4303(2) contains the provision concerning the question of pay during military leave. Basically, there is no obligation for an employer to pay an employee who is absent for military duty. However, a salaried exempt employee who misses work due to military duty must be paid the full salary for the week if he or she works any time during that week (see below). Under Texas law, government employees must be paid their full wages for up to 15 days in a year, but that law does not apply to private employers. Of course, the employee on military leave could always choose to apply available paid leave to the absence.

 

Where USERRA can come into play is in the situation of a company that treats its military-duty employees less favorably than other employees with regard to pay practices. Example: a salaried exempt military-duty employee leaves for military training in the middle of the week, and the company requires her to apply available paid leave to the part of the week not worked, but does not impose the same requirement on another salaried exempt employee who goes on jury duty in the middle of a workweek. Such disparate treatment would violate USERRA. Similarly, military-duty employees who are not salaried exempt do not have to be paid anything for time not worked due to military duty, but should be allowed to apply paid leave on the same basis as any other employee who misses work.

 

Duty to Continue Benefits?

 

An employer does not have to continue letting an employee on military leave accrue paid vacation or sick leave, as long as other employees do not accrue such benefits while out for other reasons. Paid leave accrual should be tied to months worked on the active payroll. If the leave policy provides that paid leave does not accrue during any month in which an employee performs no work, it would be permissible to stop the accrual of paid leave during an employee's military leave. Strategic tip: in general, accrue paid leave if the employee works any time at all during the month, but none if the employee performs no work at all during the month.

 

FMLA Leave for Returning Veterans

 

The U.S. Department of Labor issued an important policy memorandum on July 22, 2002, pertaining to military veterans and their rights under the Family and Medical Leave Act. According to DOL, the hours that they would have worked but for the military duty must be added to their total actual work hours in order to determine whether they worked at least 1,250 hours during the 12-month period preceding the FMLA leave. Further, the time they spend serving out the military duty must be counted as time spent with the employer for purposes of determining whether the employees have worked at least 12 total months for the employer. DOL indicated that in most cases, the calculation of hours worked would be based upon the schedule the employee had worked in the period before going on military leave. In other words, the employer must count the hours that the employee would have worked toward the 1,250-hour requirement, and it must count the actual number of weeks or months spent in such duty toward the 12-month service requirement. Thus, whenever an employee returns from military leave, the result could be that he or she will be eligible for FMLA leave if they need such leave upon their return.

 

Under the National Defense Authorization Act for FY 2008 (NDAA), which became effective on January 28, 2008, two important new provisions were added to the FMLA in support of active duty servicemembers and their families:

  1. Added to the list of qualifying events for FMLA leave is "any qualifying exigency" associated with the employee's spouse, child, or parent being on active military duty, or having been notified of an impending order to active duty, in support of a contingency operation (see FMLA regulation 29 C.F.R. § 825.126). The U.S. Department of Labor has made a poster on the new law available at http://www.dol.gov/esa/whd/regs/compliance/whdfs28a.pdf (PDF).
  2. The NDAA of 2008 also created a new form of FMLA leave that amounts to military caregiver leave: up to 26 weeks of paid and/or unpaid leave during a year is available to an employee whose spouse, child, parent, or "next of kin" (nearest blood relative) is recovering from a serious illness or injury suffered in the line of duty while on active military duty; the NDAA also put an outside limit of 26 weeks of all types of FMLA leave in a "single 12-month period" - see http://www.dol.gov/esa/whd/regs/compliance/whdfs28a.pdf (PDF) and FMLA regulation 29 C.F.R. § 825.127(c).

 

 

State Military Service

 

Although USERRA by its terms does not apply to National Guard service under state control (deployment ordered by the Governor in support of state disaster or other emergency relief operations) or to Texas State Guard service, the same basic protections apply to such state military service under Government Code Sections 431.006 and 431.017.

 

How About Salaried Exempt Employees?

 

If a salaried exempt employee goes on military duty, whether for training or as a result of being called up to active duty, special issues arise due to state and federal wage payment laws. It is best to consider this along with the other special rules for making deductions from an exempt employee's salary. Please see the discussion below.

 

Deductions from Exempt Employees' Salaries

 

The rules for making deductions from an exempt employee's salary for time missed from work are very tricky - here are the basics:

  1. Partial-day deductions from salary are allowed only for FMLA leave or for an unpaid suspension for a violation of a safety rule of major significance (example from the regulations: lighting a match in a coal mine). Partial-day deductions from leave and compensatory time balances are OK, according to many different DOL wage-hour opinion letters issued since 1993.

  2. Full-day deductions from salary are allowed only for:

    1. full days missed due to personal business of the kind that would normally be covered by a paid vacation day;

    2. full days missed due to medical reasons of the kind that would normally be covered by a paid sick leave day, if the employer has a sick leave pay policy in place, or a general policy that provides paid leave in case of sickness or other medical problems; and

    3. full days missed in the case of suspensions without pay for infractions of workplace conduct rules, pursuant to a written policy that applies to all employees.

  3. Point #2 means that partial-week deductions for any other reason are not allowed. Accordingly, an exempt salaried employee who misses only part of a week due to jury duty, witness duty, military duty, business closure (furlough, temporary shutdown, holiday, "bad weather day," and the like), or a disciplinary suspension for a reason other than violation of a safety rule of major significance would have to be paid the full salary for the entire workweek.

  4. If such an employee misses an entire workweek for any reason, his or her salary may be docked a week's worth of pay.

  5. If allowed as noted in points 2 and 4, the deductions must be in units of a day at a time, or a workweek at a time; doing a 1 1/2-day or 1 1/2-week deduction would necessarily involve a partial-day or partial-week deduction and would exceed the guidelines.

  6. For employers in the private sector, any deduction from the salary for time not worked must be authorized in writing by the employee under the Texas Payday Law.

  7. Paid leave can be used to cover any absence at any time. However, since the Texas Payday Law makes paid leave promised in a written policy an enforceable part of the wage agreement, ensure that your paid leave policy is clearly written and mentions the various circumstances under which paid leave can or must be used.

  8. It is not generally recommended that leave balances be docked at all if the employee's total hours amount to at least 40 in a workweek, or whatever the employer considers full-time for the exempt salaried employees - rationale: if an exempt salaried employee misses a couple of hours here and there, but puts in 50, 60, or 70 hours in a workweek in any event, why should the person have to "burn" any leave time at all? Although difficult to quantify, morale and turnover issues definitely matter.

 

Points 1-5 are found in the salary definition regulation, 29 C.F.R. 541.602. Point 6 has to do with the Texas Payday Law (Chapter 61 of the Texas Labor Code). Point 7 is covered by the wage and hour opinion letters noted above and by the Texas Payday Law. Point 8 is derived from common sense and practical realities.

 

Remember, just because the FLSA allows a pay deduction doesn't necessarily mean that an employer can make it without further ado. Under the Texas Payday Law, any deduction that is not ordered by a court or required by a state or federal law must be authorized by the employee in writing. Thus, the legal deductions noted above must all be authorized by the employee in writing. That can be done at the beginning of an employee's employment by having the employee sign a wage deduction authorization agreement authorizing the employer to deduct from the employee's pay an amount of money corresponding to any time missed from work that is not covered by paid leave; once that's been authorized, then all you have to do is verify that the deduction in question is one of those that is allowable under the FLSA as noted above. There should also be a reference to that in the paid leave policies as well.

 

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