Employee Benefits During Military Leave: Part 2

Previously, we examined the benefits to which an employee is entitled during the employee's absence from the workplace due to a military leave. We will now consider the employee's rights once the military leave is concluded.

Steps to Take upon the Employee's Return from Leave.

Step 1: Determine if the employee is entitled to re-employment rights.

To be entitled to reinstatement, the following conditions must be met:
� The employee gave the employer notice of the need for military leave.
� The period of military service did not exceed five years. (Note: There are some types of duty that do not count against this five-year limit. Disabled employees have two years after their dates of return-for purposes of recuperation and convalescence-to seek re-employment.)
� The employee must have been released under honorable conditions.
� The employee must have returned and applied for re-employment within the following time restrictions:
- Leaves of less than 31 days. The employee must report to work on the first regularly scheduled work period following the completion of military service; no application is required.
- More than 30 days but less than 181 days. The employee must apply for reinstatement within 14 days after completion of military service.
- More than 180 days. The employee must apply for reinstatement no more than 90 days after completion of military service.

Step 2: Determine the position into which the returning employee is to be reinstated.

When the employee returns from military service, he or she is entitled to return to the position the employee would have attained if he or she had not been called to serve. This means that if the employee would have been promoted except for this leave of absence and the employee is qualified to take the position now or can become qualified with reasonable employer efforts, then the employer must consider the employee for the promotion. If the employee is not or cannot become qualified, the employer must reinstate him or her to the job the employee held prior to leave of absence or in a position of equivalent seniority, pay and status. In limited situations, if the employer's circumstances make reinstatement impossible-for example, in light of decreased business or impending layoffs-the employer's obligation to reinstate the employee does not apply. Consult with counsel and proceed with caution before denying re-employment to an employee returning from military service.

Step 3: Determine the returning employee's returning rate of pay.

The rate of pay for returning employees includes any nondiscretionary or discretionary compensation, including step increases, periodic increases or merit increases that would have occurred "with reasonable certainty" if the employee had not been away on military service. This is known as the "escalator" principle.

In other words, if an employee in the same position received a merit-pay increase based on performance, the returning employee also would be entitled to such an increase.

The Department of Labor (DOL) has said that in order to determine how to restore the employee's compensation, the employer can look to the employee's own past performance, the performance of other employees and other factors that apply to the history of employees in the same or similar positions. Along the same lines, if an employee in the same or comparable position would have received a pay increase based on increased skills, the DOL has decided that while the returning employee is taking a skills test or being trained or qualified to take the skills test, the higher rate of pay must be paid and the employee must have time to prepare for the test.

FINAL NOTE: Employees who are returning from a military leave of more than 31 days but less than 181 days cannot be terminated without cause for six months following their reinstatement. Employees returning from a military leave of more than 180 days cannot be terminated without cause for one year following their reinstatement. Employers should design and implement well-worded military leave-of-absence policies that speak to the employee's obligations and the requirements for reinstatement upon his or her return from military service.

SESCO Management Consultants is available to assist with your human resource issues. You may contact us by phone at 423-764-4127 or by email at sesco@sescomgt.com .