Betty Bailey, the assistant manager at Joe Smith’s struggling hardware store, has been serving in the Marine Corps in Iraq for more than a year.
When Frank Jones, an insurance agent, checks on Smith’s benefits needs, Smith asks about finding a permanent replacement.
In most cases, labor law experts say, Jones should say, “Take Bailey back, or talk to a lawyer before you get yourself in huge trouble.”
Some U.S. business owners and their benefits advisors are starting to think more than they had ever expected about the hardship clause of the Uniformed Services Employment and Reemployment Rights Act.
The act, which replaced the Veterans Reemployment Rights Law in 1994, requires employers to take back reservists, Guard members and other employees who have been away on active military service for periods of 5 years or less.
The act also requires an employer to give employees who are out on military leave a chance to continue civilian health benefits. The employer and its insurers can charge only 102% of its health benefits costs for the continuation coverage.
When the employees return from military leave, the employer must give them a chance to make up missed retirement plan contributions and must ensure that they receive all the other benefits that they would have received if they had never left.
Both the law and the government are firmly on the side of the returning service member.
USERRA excuses employers from their legal obligations to returning service members only “when doing so would be of such difficulty or expense as to cause undue hardship,” according to the text of the law.
Litigation focusing on USERRA hardship exemptions has been rare because “if the employer is on any shaky ground at all, they probably back down,” says David Powell, a lawyer with the Groom Law Group, Chartered, Washington.
Unless employers have liquidated their operations or can prove other clear-cut cases of hardship, in most cases, “their lawyers are going to tell them theyve got the short end of the stick,” Powell warns. “[USERRA] is very pro returning employee.”
But some reservists and Guard members now have been on active military duty for a year or more, and the military appears to be extending the tours of some members of the Guard and Reserves in ways that could keep them away from their civilian jobs for many more months than they originally had expected.