EMPLOYMENT LAWS SPECIFIC TO MILITARY EMPLOYEES
Federal Laws Protecting Military Employees
Federal law protects military employees through the Uniformed Services Employment and Reemployment Rights Act (USERRA), 38 U.S.C. § 4301 et seq. The intent of USERRA is to ensure that employees do not lose their civilian employment status and benefits simply as a result of their service to our country. USERRA provides them with the opportunity to return to their civilian employment upon completion of their military service. Employers must reinstate returning military personnel to the same position and with the same benefits, pay, and seniority they would have enjoyed had they not left their civilian job to serve the country. Also, under USERRA, for the first 30 days of an employee’s military leave, the employer must continue the employee’s existing health, dental, and life insurance at no additional cost to the employee.
If a service-member becomes disabled due to military service and becomes unable to perform the job duties, an employer is required under USERRA to employ the returning soldier in a job that is the “nearest approximation to” the prior position. In addition, a service-member cannot be fired without cause for up to one year (depending on the length of military service) after reinstatement, regardless of Maine’s “employment at will” status or an employer’s personnel policies. USERRA also contains anti-discrimination provisions, such that hiring, promotion, and termination decisions cannot be made solely on the basis of present or anticipated membership in the armed services.
There are many other provisions, protections, and exceptions within USERRA that are beyond the scope of this article. There are also other federal employment laws that may come into play depending on the status of a military employee. For example, the federal Family Medical Leave Act provides for leave and for discrimination protections specific to military personnel who are called to duty. The 2008 revisions to the FMLA also provide for military caregiver leave. Further, state laws provide additional protections.
Maine State Laws Protecting Military Employees
In addition to USERRA, the FMLA, and other federal laws, Maine has some additional protections for military employees and their spouses. For instance, Title 26 M.R.S.A. § 811 is the Maine state version of USERRA: it provides for the preservation of a service-member’s civilian employment status while he or she is deployed. It contains benefits protections and anti-discrimination clauses similar to USERRA, and it applies to all employers, regardless of size. Under the state law, however, employees returning to civilian employment at the end of military service are entitled to longer rest periods than are required under USERRA. The amount of rest time required under the Maine law is based on the time spent on military duty, as set forth below:
Length of Military Service Length of Rest Period Between the End of Service and Return to Work
3 or fewer days of military service 24 hours
3-15 days of military service 48 hours
15-30 days of military service 72 hours
30-180 days of military service 2 weeks
180 days or more 90 days
Employers should be careful not to require a military employee to return to work before the rest period set forth above has expired. Military employees may, however, choose to return to work earlier if they wish.
Also, Title 26 M.R.S.A. § 814 incorporates provisions similar to the federal USERRA as well as the state and federal Family Medical Leave Act. Under § 814, employers with 15 or more employees must provide up to 15 days of unpaid family military leave each time their relative or partner is deployed. The leave may be taken only during the 15 days immediately preceding or immediately following deployment. To be eligible for family military leave under § 814, however, an employee must have 12 months of service with the employer, similar to Maine’s Family Medical Leave Act. Also, for leaves of five or more consecutive days, employees must give 14 days’ notice; for leaves of fewer than 5 consecutive workdays, employees only need to give employers as much advance notice as is “practicable.” Employees must also “consult with the employer to attempt to schedule the leave so as to not unduly disrupt” the employer’s operations. Qualifying employees must be reinstated to their same positions or equivalent positions after the leave, and all benefits must continue. Section 814 also contains anti-discrimination and anti-retaliation provisions, similar to USERRA and the FMLA.
Not only is it important that our military-member employees understand their rights, private employers need to understand these rights as well. Employers with employees in the military, and/or have family members in the military, should take note of the obligations they may have in granting leaves of absence to those employees. It is important that employers keep accurate records of all employee requests for leave and duration of leave taken under these laws. Employers may want to revise employee handbooks and personnel policies to reflect these laws protecting military employees and their families.
Please feel free to contact Sonia Buck at Linnell, Choate & Webber, LLP, for assistance in updating policies, or if you have any questions regarding laws protecting our military members.