Following the events of September 11, 2001, and President Bush’s declaration of the war on terror known as Operation Enduring Freedom, Reservists and members of the National Guard have been called to active duty. Also, to protect the country's airports, tunnels and bridges, the Federal Department of Homeland Security has begun the homeland security program, "Operation Liberty Shield" and asked the states to cooperate. Accordingly, through Executive Order 52, Governor McGreevey has authorized the Adjutant General to order New Jersey National Guard Members to active duty. In light of this mobilization, administrators in all New Jersey school districts should familiarize themselves with the rights of their employees who have been called to military service. This document is to provide a general overview of the pertinent federal and state laws. This document should not be relied on as legal advice, and certainly does not substitute for the recommendations of the board’s own legal counsel. In many areas, the document merely serves to raise issues that should be discussed with the board attorney.
Under federal law, every public and private employer is obligated to release a member of the New Jersey National Guard who has been ordered to military duty by the President of the United States through the respective military service secretaries and by the Governor, through the Adjutant General, New Jersey Department of Military and Veterans’ Affairs or their designees. All employers must grant excused absences from work for military duty without regard to shift or weekend work policies. To refuse leave to an employee who has been so ordered subjects the employer to criminal prosecution or other penalties.
The Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 et seq., enacted in October 1994, provides employees called to duty with rights of reinstatement and other protections. This federal law applies to employees in the uniformed services, which means the Armed Forces (i.e., the Army, Navy, Air Force, Marine Corps, and Coast Guard, see 10 U.S.C. § 101), the Army National Guard and the Air National Guard when engaged in active duty for training, inactive duty training, or full-time National Guard duty, the commissioned corps of the Public Health Service, and any other category of persons designated by the President in time of war or national emergency. It applies both to voluntary and involuntary service, and includes active duty, active duty for training, initial active duty for training, inactive duty training, full-time National Guard duty and absences for an examination to determine fitness for duty. An employee’s federal protection under USERRA terminates if the employee is dishonorably discharged.
New Jersey statutes provide additional protections. To the extent that the applicable provisions of State law differ from federal law or provide benefits not provided by federal law, employees must receive the more generous or beneficial treatment.
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Nothing contained in this document should be construed as legal advice. This document is for informational purposes only. Please consult your board attorney for legal advice.
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Further, if your district has established through collective bargaining agreement, individual staff contract, or policy, additional rights or protections beyond those required by law, these will be binding. On the other hand, terminology used in such agreements, contracts or policies may not be used to restrict the legal rights accorded employees called to active service. USERRA § 4302 A careful review of your district’s contracts and policies will be helpful to assure that your district complies with all the legal requirements.
An employer may not deny initial employment, reemployment, retention in employment, promotion or other benefits to an employee, if one of the employer’s motivating factors for that discrimination or adverse action is the employee’s membership in the uniformed services, application for membership, service, application for service or obligation for service. Nor may an employer take adverse action against an employee for that employee’s actions in enforcing protections afforded to him/herself, or to any person under the law. USERRA § 4311
Neither the timing, frequency or duration of training or service, nor the nature of the training or service, may be a basis for denying reemployment rights, provided the duration of the service in the uniformed service does not exceed the limits set forth, and the notice and notification requirements are met. USERRA § 4312(h)
An employer is not engaging in prohibited conduct if the employer can prove that the employment action would have occurred even in the absence of the employee’s military involvement or his/her actions to enforce protections provided by law.
COMPENSATION DURING LEAVE
Paid leave for 90 days
Although USERRA does not require that the school district compensate employees during the leave, State law contains certain requirements for paid leave. In order to determine who is entitled to pay, school districts should obtain the employee’s military orders, and determine what branch of the military they are from, and what kind of duty is ordered.
As described below in more detail, state statute as newly amended, affords paid leave to most school employees who are members of the state organized militia on leave for state or federal active duty or active duty for training. Members of the state organized militia who are on leave for federal active duty or active duty for training are entitled to paid leave not to exceed 90 work days per calendar year. School employees who are members of the United States Army or Reserves, or member of the National Guard of other states, are entitled to paid leave of up to 30 work days per calendar year, for periods of federal active duty. P.L. 2001 c. 351 (amending N.J.S.A. 38:23-1; N.J.S.A. 38A:1-1; N.J.S.A. 38A:4-4 and repealing N.J.S.A. 38:23-1.1 et seq.)
New Jersey National Guard Districts must provide paid leave to permanent or full-time temporary employees who are members of the state organized militia on all days during which they are engaged in state of federal active duty. N.J.S.A. 38A:4-4. The organized militia consists of all of the organized military forces of this State. (New Jersey’s National Guard, New Jersey Naval Militia Joint Command.) Federal active duty or active duty for training is defined as duty ordered in accordance with federal law; state active duty or active duty for training is defined as active duty ordered in accordance with any law or rule of this State. N.J.A.C. 5A:2-1.2.
For leaves taken for federal active duty or active duty for training, the paid leave entitlement shall not exceed 90 work days in the aggregate in any one year. Such paid leave is in addition to any military pay received. Leaves of absence for such duty in excess of 90 work days is without pay but without loss of time. Any leave of absence for active duty in the organized militia is in addition to regular vacation or other accrued leave.
The leave of absence entitlement for temporary employees who have served for less than one year is without pay, but without loss of time. N.J.S.A. 38A:4-4c; N.J.A.C. 5A:2-2.1.
The 90-day required pay does not apply to Reservists in other branches of the military, such as the United States Army, Navy, Marine, Air Force, or Coast Guard. Therefore, it is important to determine the relevant branch of the military.
N.J.A.C. 4A:6-1.11 (b) contains a similar provision for 90-days paid leave for employees in the career, senior executive or unclassified service who are members of the State’s organized militia, which provision would appear to apply in those school districts that are governed by Civil Service law, as well as teachers and administrators in all districts, as they are in the unclassified service. See N.J.S.A. 11A:3-5.
United States Reserves The other situation where a district is required to pay the full salary of the employee is where the employee is a member of the organized reserve of the United States Army, Navy, Air Force, or Marine Corps, or other affiliated organization, or is a member of the Nation Guard of another state. N.J.S.A. 38:23-1. (See also, N.J.A.C. 4A:6-1.11, which applies to employees in the career, senior executive, or unclassified service.) Such members of the reserve organizations of the United States Armed Forces are entitled to a leave of absence from their duties as employees of the district "without loss of pay or time" on all work days on which he or she is engaged in any period of federal active duty for up to 30 work days in any calendar year. Such leave of absence is in addition to regular vacation or other accrued leave. Any leave for such duty in excess of 30 work days is without pay but without loss of time. Employees who have served for less than one year are not entitled to paid leave.
No pay for inactive duty N.J.A.C. 5A:2-2.1 further clarifies that only leaves of absence without pay are authorized for periods of Inactive Duty Training (IDT) (in common parlance, "weekend drills").
IDT is defined by Army, Air Force, and National Guard Regulations, and includes unit training assemblies, rescheduled unit training assemblies, split unit training assemblies, additional flight training periods, readiness management assemblies, additional training assemblies, authorized additional training time for instruction of operation of M-COFT training device, proficiency training and training period preparation assembly. Military leaves of absence with pay are required for all types of military training with the exception of the IDT periods listed above.
The 90-day paid leave for members of the New Jersey Army and Air National Guard is calculated on a calendar year basis. See also, N.J.A.C. 5A:2-2. This could result in “piggybacking,” e.g., an employee on orders for 90 days at the end of one year will have a new entitlement of 90 days’ paid leave starting in January of the next year. Employers are responsible to pay employees only for the days the employees would have actually worked during any period of military leave. For example, if an employee is on military leave for 90 consecutive days, but would have only worked for 70 of those days, the employer is only obligated to pay for the 70 days. The employee would have 20 days paid leave remaining for the calendar year.
Full pay, not differential pay
There is no statutory language that explicitly states whether the 90-days’ pay must be full pay or may be differential pay. Attorney General Opinion #88-80115, in reliance on several judicial decisions including Parks v. Union County Parks Commission, 7 N.J. Super. 5 (App. Div. 1950), indicated that a district is obligated to pay full pay under N.J.S.A. 38:23-1 and N.J.S.A. 38A:4-4, regardless of the military income the employee may also receive during that 90-day period. Note that while this AG opinion was based on those statutes prior to the 2001 amendments, there is nothing in the amended language that would indicate an intention to require only differential pay.
P.L. 2001, c.351 provides that, upon application for reimbursement by a board of education to the State Treasurer for reimbursement and approval of the application by the Director of the Division of Budget and accounting, reimbursement shall be made by the State for any costs incurred as a result of such new law (P.L. 2001, c.351).
NJSBA has been advised by representatives from the
Department of the Treasury that to obtain such reimbursement, a school district
should must provide a summary of costs by employee by hourly rate and the
duration of the leave with the associated dollar amount for reimbursement. As
backup to the summary, the school district needs to provide documentation
(employee pay record history) that details the pay with leave on a payroll
record. These should be attached to a transmittal letter explaining that the
school district is requesting reimbursement from the State for military leave in
accordance with P.L. 2001, c.351. The letter should come an authorized
individual from the school district. The letter and attachments may be sent to:
Mr. David
Ridolfino, Deputy Director, Department of the Treasury
Executive Administration Division
PO Box 211
Trenton, NJ 08625
A copy of this information should be sent to:
Roger Bushyeager, Budget
Analyst, Department of the Treasury
Office of Management and Budget
PO Box 221
Trenton, NJ 08625
Discretionary pay
A school board as a subdivision of the State, may, in its discretion, pay employees “in whole or in part” during the time they are “engaged in a branch of the military or naval service of the national or State government.” N.J.S.A. 38:23-3. This applies to discretionary pay over and above that which is statutorily required. This provision would permit a board to pay the salary, “in whole or in part” of employees who are not otherwise statutorily entitled to 90 days’ pay, such as those called into active federal Reserve service. It would also permit a board to pay the salary of those employees who have a statutory entitlement to full pay, beyond the required 90 days. A board should refer to the collective bargaining agreement to determine if it has negotiated such pay, and should check its policy for employees not covered by a collective bargaining agreement.
States and municipalities, however, are limited to providing differential pay to “commissioned officers.” N.J.S.A. 38:23-3 is silent on whether subdivisions of the state may pay more than differential pay (i.e., pay that, when added to the military salary, equals the salary paid by the State or municipal department prior to military service). Nor is it clear who would be considered commissioned officers. In any event, this provision, as it does not refer to subdivisions of the state, would seem not to limit boards of education as it does the State and municipalities, to providing only differential pay.
On September 26, 2001, Acting Governor DiFrancesco issued Executive Order 133, which entitles State employees called to military service to differential pay for the duration of their activation. On February 27, 2003, Governor McGreevy signed a similar Executive Order #50 concerning the call-up of State employees for active military duty in response to the continuing Global War on Terrorism, and current situations with Iraq and North Korea. Under these Executive Orders, State employees will receive full pay under the 90-day statutory period, and differential pay beyond that period. State employees receiving differential salary are entitled to State employee health benefits, life insurance and pension coverage during active duty service as if they were on paid leave of absence; if the employee’s military pay is greater than the civilian pay and the employee therefore receives no differential pay, the State employee is nonetheless entitled to health benefits, life insurance and pension coverage during active duty, with the employee’s contributory portion to be paid by the employee upon his or her return to State employment.
The Executive Orders do not apply to employees of school districts. School districts may elect to extend similar benefits.
HEALTH INSURANCE DURING LEAVE
School districts should consult their legal counsel regarding entitlement to continued health benefits during leave. As described below, one possible interpretation of N.J.S.A. 38:23-4 is that an employer must continue the health benefits of the employee on leave, and subsidize that insurance to the same extent as for employees in work status. Such an obligation would exceed the obligation under federal law.
USERRA states that an employee who is on leave of absence for service in the uniformed services may elect to continue coverage under the employer’s health plan, for up to 18 months. This elective coverage lapses after 18 months from the date the absence commences. However, it will lapse the day after the date on which the employee fails to apply for or return to the position as required under USERRA, if that occurs earlier. The employee can be required to pay up to 102% of the full premium associated with coverage for the other employees. An employee who performs military service for fewer than 31 days can only be required to pay the employee share of the premium. USERRA § 4317
If the employee’s coverage is terminated because of service in the uniformed service, a waiting period may not be imposed if coverage is reinstated upon reemployment, if a waiting period would not have otherwise been imposed.
State law: The Division of Pensions and Benefits has issued a letter to the certifying officers of State pensions systems, including TPAF and PERS, on the subject of Benefits Continuation for Employees Called to Active Duty During Operations Noble Eagle and Enduring Freedom. The letter does not reference State statutes, and should be reviewed with the board attorney. See, http://www.state.nj.us/treasury/pensions/coltr01.htm
The letter indicates that where the employee is on a leave of absence with pay, the employer should continue to report and remit pension and State Health Benefits Program payments in the normal manner; if the military salary is sufficiently high that the public employee received only differential pay or no pay, then the employer should pay the deductions for the employee’s regular deductions, and may then bill the employee for these costs after the military leave is over.
If the employee is on an unpaid leave, the letter states that the absence is treated as any other leave of absence without pay for health insurance purposes under SHBP. Coverage terminates on the last day of the first month for which the employee received no salary payment. The employer may permit the employee to continue his/her benefit coverage from SHBP for up to nine months by repaying the full cost of the coverage to the employer in advance. If the employee is still on leave beyond the time for which coverage has been purchased, coverage may be extended under COBRA for a period not to exceed 18 months. If the employer does not offer this payment option while on leave, then the employee may elect to continue coverage under COBRA for a maximum time period of 18 months.
Notwithstanding the Division of Pensions and Benefits’ letter, it is possible that N.J.S.A. 38:23-4 could be interpreted to apply during the current emergency. N.J.S.A. 38:23-4 applies to employees in “active military or naval service of the United States or of this State, in time of war or an emergency, or for or during any period of training … or who hereafter, in time of war, shall enter the active service of the United States Merchant Marine, or the active service of the Women’s Army Auxiliary Corps, the Women’s reserve of the Naval Reserve.” It requires public employers to maintain benefits as if the employee on military leave were actually working for the employer during the leave, and does not distinguish between paid and unpaid employees. Such an obligation could be inferred from the following language:
To the extent that this provision may provide protections beyond that required under USERRA, the employer will be required to provide the more generous treatment. Consultation with the board attorney is crucial, to determine how to construe the federal and State provisions together.
Under both federal and State law an employee must be permitted to use paid vacation leave and other similar accrued paid leave during a military absence. An employer may not require the employee to use such leave during the period of service. USERRA § 4316 (d); N.J.A.C. 4A:6-1.11(d)
Employees who are on paid leave
The Division of Pensions and Benefits has issued a letter to the certifying officers of State pensions systems, including TPAF and PERS, on the subject of Benefits Continuation for Employees Called to Active Duty During Operations Noble Eagle and Enduring Freedom. The letter does not reference State statutes, and should be reviewed with the board attorney. See, http://www.state.nj.us/treasury/pensions/coltr01.htm
The Divisions of Pensions letter states that for employees on paid leave, the employer should continue to report and remit regular pension contributions in the normal manner. If the employee’s military salary is so high that the employee receives no differential pay or if the differential pay is insufficient to cover all deductions, the employer should pay the deductions for the employee’s regular pension contributions, and contributory group life insurance. The employer may then bill the employee for these costs after the military leave is over.
Employees who are on unpaid leave
No break in service There must be no impairment to pension rights because of military service. Time spent in the uniformed services will be considered time spent in employment. A person reemployed after uniformed service is to be treated as not having incurred a break in service with the employer; military service is deemed to count as service with the employer for vesting and benefit accrual purposes. However, it does not count for benefits calculation purposes. USERRA § 4318 (a)(2); New Jersey Division of Pensions and Benefits, letter to certifying officers.
A member may receive pension credit for the period of uniformed service by making the employee pension contributions that would have been required had the member not left employment to service in the uniformed services. The member may request in writing that the Division schedule back deductions based upon the salary he would have received but for the period of service. The employee may choose to pay the amount either in one lump sum, or as back deductions from the date of reemployment to continue for the lesser of either five years or three times the period of uniformed service. The member may also make additional elective deferrals in an amount not exceeding the maximum amount the employee would have been permitted to contribute if he’d actually been employed during the military service. New Jersey Division of Pensions and Benefits, letter to certifying officers; USERRA § 4318 (b)(2)
Basis for determining contribution
Federal law: To determine the employer’s liability or an employer’s contributions under a pension benefits plan, the employee’s compensation during the period of the military service will be based on the rate of pay the employee would have received from the employer but for the absence. If the compensation was not based on a fixed rate, the rate will be determined by the average over the prior 12 months. USERRA § 4318 (b)(3)
Documentation
Where an employee has been absent on military leave for more than 90 days, an employer may require that the employee provide certain documentation, before treating the person as having had no break in service for pension vesting and benefit accrual purposes. USERRA § 4312 (f) (3) (B)
State law: It is unclear whether N.J.S.A. 38:23-6 applies during the current emergency. That provision requires that, during the period of military service, the school district must continue making its required contribution based on the employee’s salary prior to entering military service. However, N.J.S.A. 38:23-5 was amended to limit its application with respect to emergencies by defining “in time of emergency” as meaning any time after June 23, 1950 and prior to January 31, 1955. It would seem to apply in time of war.
N.J.S.A. 38:23-5 and 6 state that employees who are receiving compensation from the school board during the leave shall continue to make their pension contribution; if the employee is not being paid by the district the district must contribute the employee’s share. With respect to employees who are not being paid by the district, it is not clear whether this refers to employees on unpaid leave, or whether it only refers to employees who are granted differential pay, but who do not actually receive any pay from the employer because the military leave exceeds the civilian leave.
N.J.S.A. 18A:6-33 saves from repeal L. 1944 c. 226. The included statutes, N.J.S.A. 18:4A-1 to 4A-4, are found in Schedule C of 18A, Acts Saved From Repeal.
N.J.S.A. 18:4A-3 provides that any employee who enters military service in time of war retains the pension benefits provided by L 1942 c. 252 as amended (N.J.S.A. 38:23-5) except that if the employee would have received salary increments had he not been on leave, the amount of contributions and the right to participate in the benefits of the pension fund are calculated on the basis of the increased salary.
Repayment of employee contribution The federal law contains a provision for repayment of the employee contribution; state law simply says that an employee who is not being compensated by the school district shall not be required to contribute the amount required by statute to be paid by members of the pension fund, but that the amount shall be contributed by the school district. N.J.S.A. 38:23-5,6. It is not clear whether the silence on this issue under State law would be interpreted to preclude requiring the employee to repay the employee contribution; the board attorney should be consulted.
ACCRUAL OF BENEFITS DURING LEAVE
Seniority Seniority rights and benefits continue to accrue while an employee is in the service, as if he/she had been continuously employed. USERRA § 4316 See also, N.J.A.C. 4A:6-1.11 (d). The employee is afforded the same status that he/she would have enjoyed if employment had continued during the entire period of his service in the uniformed service. Thus seniority rights upon reemployment must be calculated to include the period of absence. The employee, when reemployed, does not step back on the seniority escalator at the point he/she stepped off, but rather on the place the employee would have occupied had he/she kept the position continuously during the period of military service.
N.J.A.C. 6:3-5.1, regarding the impact of leaves of absence on seniority, does not control to the extent that it conflicts with federal law regarding the accrual of seniority during military absence. N.J.S.A. 18A: 28-11.1, to the extent that it would limit the period of service that counts toward seniority to four years, would appear to be preempted by the more generous federal law.
If an employee serving in the military would have been subject to a reduction in force (RIF) had he/she continued to be employed, then on the employee’s return he/she may be entitled to no more than recall rights in accordance with his/her seniority. Similarly, if the employee would have been entitled to a promotion had the employee continued in employment rather than serve in the uniformed forces, upon reemployment he/she will be entitled to be paid at the increased rate of salary.
Increments
An employee on military leave should advance on the salary guide in the same fashion as if he or she had been continuously employed. N.J.S.A. 38:23-4, which applies to employees other than those employed on a fixed term, provides, “(d)uring the period of such leave of absence such person shall be entitled to all the rights, privileges and benefits that he would have had or acquired if he had actually served in such office, position or employment during such period of leave of absence except, unless otherwise provided by law, the right to compensation.” Similarly, USERRA § 4316 provides that a person who is reemployed is entitled to rights and benefits determined by seniority that the person would have attained had he/she remained continuously employed.
It is likely that these provisions would preclude a board of education from taking into account military-related absence in order to withhold an increment. Denying an increment for reason of absence due to military leave could be viewed as discriminatory treatment under the Act.
Moreover, there are several State statutes that should be considered. N.J.S.A. 18A:6-33 saves from repeal L. 1944 c. 226. The included statutes, N.J.S.A. 18:4A-1 to 4A-4, are found in Schedule C of 18A, Acts Saved From Repeal.
Under 1, which applies to employees not on a fixed term (presumably meaning tenured employees) who serve in active state or federal military service during war or emergency or during training, are entitled to all of the benefits of L. 1941 c. 119 (N.J.S.A. 38:23-4), except that if, while the person is on leave, salary increments are granted to others employed in the same classification, the employee is entitled to those increments after resuming work, and if the employee is on a paid leave, the employee is entitled to the increase during the leave.
Under 2, which applies to those employed for a fixed term, any salary increments that the person on military leave would have received had they remained employed must be granted upon resuming employment, and if the leave is with pay, then the employee is entitled to the increase during the leave.
On the other hand, the law does not preclude withholding increments of an employee called to military duty, on the basis of performance-related problems or misconduct, if the employer can prove that the action would have been taken even if the person had no military involvement. USERRA § 4311
Tenure The question of whether leaves of absence for military duty would count toward tenure is not explicitly addressed by the federal law. The board attorney should certainly be consulted should the issue arise.
In considering the issue, board counsel should review N.J.S.A. 18A:6-33 to determine whether and how it may apply during the current emergency. N.J.S.A. 18A:6-33 saves from repeal L. 1944 c. 226. The statutes saved from repeal, N.J.S.A. 18:4A-1 to 4A-4, are found in Schedule C of 18A, Acts Saved From Repeal. Under 2, which applies to those employed for a fixed term (presumably non-tenured employees) an employee is entitled to a leave of absence for military service plus three months after discharge, and is entitled to resume the civilian position of employment for an amount of time at least as long as the remainder of the employment contract, but at least a year.
The statute further indicates that the time the employee serves after returning is counted in determining tenure as if there had been no interruption caused by the military leave. This would seem to indicate that the time actually served during the leave of absence would not count towards tenure, and that the leave would be considered an interruption.
The New Jersey Supreme Court decision of Kletzkin v. Spotswood Board of Education, 136 N.J. 275 (1994) is the most recent State pronouncement on the effect of leaves of absence on tenure acquisition. That case did not concern military leave, but rather a paid leave of absence for work-related disability that began when the teaching staff member was two months shy of acquiring tenure. The Court found that the time of the absence counted toward tenure acquisition, and that the brief period of sick leave did not deprive the Board of its opportunity to evaluate the teaching staff member before she acquired tenure. The Court also indicated that, in another situation, a more extended leave of absence could lead to a different result. This case may be instructive.
Other benefits
N.J.S.A. 38:23-4, which applies to employees other than those employed on a “fixed term,” provides, “(d)uring the period of such leave of absence such person shall be entitled to all the rights, privileges and benefits that he would have had or acquired if he had actually served in such office, position or employment during such period of leave of absence except, unless otherwise provided by law, the right to compensation.”
USERRA § 4316 During the leave of absence, the employee is entitled to those benefits not determined by seniority as are generally provided by the employer pursuant to contract, agreement, policy or practice, for employees on leave of absence. The employee must be treated like other employees with similar seniority, status and pay who are on leave of absence. Upon reemployment, the employee on military leave is entitled to the benefits that were available at the time he/she left for service, as well as those that became effective during their service. The employee is not entitled to benefits he/she would not be entitled to had he/she remained continuously employed. The employee may be required to pay the cost of benefits if other employees on leave of absence are required to pay such costs.
However, if an employee who was absent by reason of service in the uniformed services knowingly provides written notice of intent not to return to employment, he is not entitled to these benefits. The employer has the burden of demonstrating clear written notice of intent not to return and that the employee was aware of the rights and benefits he/she would lose.
Advance notice: Appropriate advance notice of the need to serve depends on the circumstances. No advance notice is required if giving such notice is precluded by military necessity (as determined pursuant to regulations prescribed by the Secretary of Defense), or if it is otherwise impossible or unreasonable.
Reporting or application for reemployment: See, below, WHEN MUST MEMBERS OF THE UNIFORMED SERVICES REPORT BACK TO WORK?
Permitted length of absence: The absence, combined with all previous absences for uniformed service from a position with that employer, does not exceed five years. There are eight categories of military service that are exceptions to the five-year limit:
1. Service that requires more than five years to complete the initial obligation. For example, some military specialties require an initial active service obligation greater than five years.
2. Service from which a person is unable to obtain a release within the five-year limit. For example, service members may be involuntarily retained on active duty beyond their obligated military service date.
3. Required training for reservists and National Guard members.
4. Involuntary orders to serve or be retained on active duty during a domestic emergency or national security related situation.
5. Ordered active duty service during a war or national emergency declared by the President or Congress.
6. Ordered active duty to support “operational missions” without the consent of the voluntary service member.
7. Ordered active duty to support a “critical mission or requirement” when no involuntary call up is in effect.
8. National Guard federal service as ordered by the President to “suppress an insurrection, repel and invasion, or to execute the laws of the United States.”
If service was for less than 91 days, an employer must offer to place a returning employee :
a. in the position he/she would have had if continuously employed (e.g., to a promotional or lower position if the person would have been promoted/RIF’d had he/she been continuously employed--this is called the escalator clause) if the employee is qualified or can become qualified with reasonable employer efforts.
b. if the person is not qualified to perform in any such position after the employer makes reasonable efforts to qualify him/her, then in the position held by the employee when the military service started.
c. if the person cannot become qualified for that position even after reasonable employer efforts, then in a position for which the duties he/she can perform, that is the nearest approximation first to (a) above, and if not, then to (b), with full seniority. USERRA § 4313(a)(1) and (4)
If service was for more than 90 days, an employer must offer to place a returning employee :
a. in the position he/she would have had if continuously employed (e.g., to a promotional or lesser position if the person would have been promoted/RIF’d, had he/she been continuously employed--this is called the escalator clause) or a position of like seniority, status and pay for which he/she is qualified, as long as the person is qualified, after reasonable employer efforts to so qualify him/her.
b. if the person is not qualified therein after reasonable efforts by the employer, then in the position in which the person was employed when military service started or a position of like seniority, status and pay for which he/she is qualified.
c. if the person cannot become qualified for that position even after reasonable employer efforts, then in any other position for which the employer can perform the duties, of lesser status and pay that that is the nearest approximation first to (a) above, and if not, then to (b), with full seniority .
Employees disabled during military service:
a. The employer must make reasonable efforts to accommodate the employee’s disability so that the employee can perform the position he/she would have held if he/she had been continuously employed.
b. If the employee is nonetheless not qualified to serve in the position, due to the disability, he/she must be restored to a position equivalent in seniority, status and pay, so long as he/she is qualified or could become qualified with reasonable employer efforts.
c. If even with reasonable employer efforts to qualify him for such position the employee is not qualified therefore, then he/she is entitled to the position that is the nearest approximation of seniority, status and pay, consistent with individual circumstances.
Conflicting employment claims If two persons are entitled to reemployment in the same position, the person who first left the position has the superior right to it. The other person(s) is/are entitled to employment with full seniority in any other position that provides similar status and pay in the order of priority under the reemployment scheme otherwise applicable to such person.
Waiting period for discharge There is a waiting period after reemployment, during which time an employer may not discharge an employee except for cause--1 year for employees who served for 180 days in the uniformed service, and 180 days for those who served between 30 and 180 days. USERRA § 4316 (c) This provision would not appear to affect a board’s decision to file tenure charges, as a tenure dismissal would be based on cause. Examples of cause would seem to include unsatisfactory job performance, excessive absenteeism from work, insubordination, etc. Also, midterm terminations of a non-tenured employee’s contract would be permissible for cause.
Arguably, the decision not to renew a non-tenured employee is not a “discharge” under this provision. Thus, the waiting period would not appear to interfere with a district’s ability to nonrenew staff at any time, even though the standard for nonrenewal of school employees does not rise to the level of “cause” under New Jersey law. Applying this reasoning, a district could renew nontenured staff returning from military leave, so long as the action would have occurred even in the absence of the employee’s military involvement or his/her actions to enforce protections provided by law.
EXCEPTIONS TO OBLIGATION TO REEMPLOY
Where certain conditions exist pursuant to USERRA § 4312 (d), an employer is not under an obligation to reemploy a person returning from military leave. However, the employer will bear the burden of proving that these conditions exist:
Changed circumstances: the employer’s circumstances have changed so as to make reemployment impossible or unreasonable.
“Undue hardship on employer due to employee’s disability: the employee is not qualified for the position in which he/she would otherwise be entitled pursuant to the requirements of USERRA, due to service-related disability, and the employer would be required to provide reasonable accommodation, training or other efforts to have the employee qualify for the same or other positions, as required, if such reemployment would impose an “undue hardship” on the employer. (Undue hardship refers to actions “requiring significant difficulty or expense” when considered in light of the nature and cost of the action needed, the overall resources of the facility and of the employer, and the type of operation of the employer. USERRA § 4303(15) )
Brief employment: The employment was for a brief, nonrecurrent period with no reasonable expectation that it would continue significantly. (This would probably apply to substitute teachers)
Intent not to return to work. The employee knowingly provided written notice of intent not to return to employment. USERRA §4316.
WHEN MUST MEMBERS OF THE UNIFORMED SERVICES REPORT BACK TO WORK?
An employee must provide the employer with notice that he intends to return to work in most situations. USERRA § 4312 (e) and (f) The amount of notice depends on the length of the period of service, as follows:
· If the period of service was less than 31 days, or if the absence of any length was for a fitness-for-duty examination, the employee need only report to the employer by the start of the first regular work period that falls eight hours after the end of the last calendar day of military service and a period allowing for safe transportation home; if that is impossible or unreasonable for reasons not the employee’s fault, as soon as possible thereafter.
· If the period of service was for more than 30 days but less than 181 days, the employee must submit an application for reemployment not later than 14 days after completion of service. If that is impossible or unreasonable through no fault of the employee, on the next first full calendar day possible. If the employer requests, the employee must provide documentation (as per regulations prescribed by Secretary of Labor) to establish that his/her application is timely, that the length of the absence has not exceeded 5 years except as permitted, and the employee was not dishonorably discharged or service was not otherwise terminated pursuant to USERRA § 4304.
· If the period of service was for more than 180 days, the employee must submit an application for reemployment not later than 90 days after completing the period of uniformed service. If the employer requests, the employee must provide documentation (as per regulations prescribed by Secretary of Labor) to establish that his/her application is timely, that the length of the absence has not exceeded 5 years except as permitted, and the employee was not dishonorably discharged or service was not otherwise terminated pursuant to USERRA § 4304.
· A member of a reserve component on authorized leave for funeral honors duty is deemed to have notified the employer of his intent to return. USERRA § 4306(e)
Extension for injured employees If the employee was injured during service in the uniformed services, the person must report/submit an application to the employer as described above, at the end of the necessary recovery period, which period may not exceed two years; however, the recovery period must be extended by the minimum time required to accommodate circumstances beyond the employee’s control which make it impossible or unreasonable for the employee to report within the two-year period.
Extension under State law: N.J.S.A. 38:23-4 (see also N.J.A.C. 4A:6-1.1(a), applicable to employees in the career, senior executive or unclassified service) provides for a leave of absence for a further period of three months after receiving discharge, or if wounded, three months from recovery. This leave applies, in relevant part, to persons including “every person holding office, position, or employment, other than for a fixed term or period under the government of … any school district …who hereafter shall enter, the active military or naval service of the United States or of this State, in time of war or an emergency, or for or during any period of training… or who hereafter, in time of war, shall enter the active service of the United States Merchant Marine, or the active service of the Women’s Army Auxiliary Corps, the Women’s reserve of the Naval Reserve or any similar organization authorized by the United States to serve with the Army or Navy…” The employee is entitled to resume employment provided he applies for his position before the expiration of that leave.
To the extent that this provision may be applicable to a particular employee, and to the extent it may provide protections beyond that required under USERRA, the employer will be required to provide the more generous treatment. Consultation with the board attorney is crucial, to determine how to construe the federal and State provisions together.
WHEN AN EMPLOYEE FAILS TO APPLY OR REPORT
If the employee fails to report or apply for reemployment within the appropriate time period, a board may not automatically terminate the employee. Rather, the board must apply its ordinary rules, policy and practices with respect to absences from scheduled work, in determining whether discipline is appropriate, and what process is due. USERRA § 4312 (e)(3) For example, a tenured teaching staff member would be subject to the procedures under State tenure laws, etc.
WHEN AN EMPLOYEE DOES NOT PROVIDE DOCUMENTATION
If the employee fails to provide the appropriate documentation at the time of the employer’s request, the employer may deny reemployment if the documentation exists and is readily available. USERRA § 4312 (f)
If the failure to provide the documentation occurs because the documentation does not exist or is not readily available at the time of the employer’s request, the employer must promptly reemploy the returning service member. However, if the documentation later becomes available and establishes that the person does not meet the requirements of timeliness, service limitation or honorable discharge, then the employer may terminate the employee and all benefits of USERRA.
An employer may not delay or attempt to defeat reemployment by demanding documentation that does not then exist or is not then readily available.
While USERRA states that the employer may deny reemployment, or may terminate the employee, school districts may be required to follow existing statutory and negotiated due process procedures applicable to the termination of school employees, including tenure procedures and rights pursuant to collective bargaining agreement. Consultation with the board’s attorney is critical should a board of education find itself in such a situation.
Pension For pension purposes, however, where an employee has been absent for more than 90 days, the employer may require that the documentation be provided before treating the person as having had no break in service.
ENFORCEMENT
An employee has two avenues to enforce his/her federal rights.
The employee may file a complaint with the United States Secretary of Labor, who will investigate such complaint and may provide technical assistance. USERRA § 4322 The Secretary will attempt to resolve the complaint. If these efforts are unsuccessful, the Secretary will notify the employer, and will inform the employee of his/her right to further proceedings. The employee may ask the Secretary to refer the complaint to the Attorney General, who may act as the employee’s attorney and commence an action against the employer, or:
The employee may commence a private action in United States District Court if the employee chooses not to seek the AG’s assistance, or chooses not to have Secretary refer the matter to the AG, or if the AG refused to represent the employee.
If a violation of these laws also implicates contractual or other statutory rights, an employee may appeal contractual claims through the grievance procedure as provided by contract, and may challenge other statutory violations in the appropriate judicial or administrative forum.
Employer’s potential liability A court enforcing the federal law may order temporary or permanent injunctions, temporary restraining orders and contempt orders. It may order compensation for lost wages or benefits. Double damages may be ordered for willful noncompliance, and the prevailing employee who initiates a private court action may be awarded attorney fees, expert witness fees, and other litigation expenses.
RESOURCES
The following websites contain information about the employment rights of employees in the uniformed services:
U.S. Department of Labor home page: http://www.dol.gov.
A Non-Technical Resource Guide to the Uniformed Services Employment and Reemployment Rights Act: http://www.dol.gov/dol/vets/public/whatsnew/uguide.pdf
ESGR-Employer Support of Guard and Reserve: www.esgr.org
New Jersey Department of Military and Veterans Affairs: http://www.state.nj.us/military/
The Division of Pensions and Benefits, Benefits Continuation for Employees Called to Active Duty During Operations Noble Eagle and Enduring Freedom: http://www.state.nj.us/treasury/pensions/coltr01.htm
The Uniformed Services Employment and Reemployment Rights Act (USERRA), publication of NSBA updated 4/15/03: {HYPERLINK “http://www.nsba.org/site/docs/11500/11418.pdf “}
5/01/03