LEGAL: Coping With Call-Ups

One way or another, terrorism and the war on terrorism affects all of us — at work, at home, at leisure. Many of the assumptions and expectations that allowed us a relatively carefree life vanished after Sept. 11.

Among the realities and uncertainties now part of our everyday existence is the likelihood that a number of our friends, neighbors, co-workers and employees who are military reservists, will be called to active duty.

While these individuals are proud, ready and able to do what their country asks, some reservists are understandably worried about what to tell their employer and what to expect at work after their return. For their part, some company owners are dismayed about losing valuable workers for an indefinite period, but are nevertheless committed to fulfilling their obligations to their departing employees.

Jerry, the operations director of a mid-sized waste firm received a voice message early last November from a manager at one of the company's landfills. The message explained that a senior officer in the manager's reserve unit told him to expect a call to active duty soon. Jerry phoned the manager, asking him to notify the company about any developments. The call-up was a sure thing, the manager responded, but the report-for-duty date was uncertain. Right after this conversation, Jerry e-mailed the manager summarizing their conversation and noting a “cc” to the company owner.

On the day before Thanksgiving, the manager received a phone call from his unit, officially informing him that he had been called to active duty and should report on November 28 for processing. The manager promptly called Jerry and told him the news. He promised to furnish Jerry and the company's personnel office with copies of his orders, but not until after he reported for duty. The reserve center was reportedly overwhelmed with paperwork at the time.

When he arrived at the landfill on the day after Thanksgiving, the manager found Jerry waiting for him outside his office. Jerry stated that until the company received a copy of the call-up orders, the company did not consider either the manager or the company to have been notified. The encounter almost became testy, according to the manager, until Jerry (after first checking with the company owner) agreed to accept an e-mail from the commanding officer of the reserve unit. Four days later, Jerry received a copy of an e-mail, which the reserve unit had sent to the company's main office regarding the manager's report date.

Did the company overstep its rights in insisting on prompt submission of military orders?

Ten years ago, during the Persian Gulf War, workplace problems arose when more than a quarter million reservists were activated. Consequently, Congress enacted the Uniformed Services Employment and Reemployment Rights Act of 1994 (P.L. 103-353).

The law prohibits any employer from denying employment, reemployment, retention, promotion or any employment benefit to any person who performs or has an obligation to perform in a uniformed service. Employers are forbidden from discriminating against or taking an adverse employment action against any employee who exercises his rights under the law.

Individuals who are absent from employment because they perform military service are entitled to the rights and benefits granted by the law if (1) they give advance notice to the employer, (2) with certain exceptions, the cumulative length of such absence and prior military-related absences do not exceed five years, and (3) they report back to their employers upon completion of service in the manner required under the law.

Although the law requires a worker to give prior notice of military service, it does not specify the manner and content of such notice. An affected employee probably should check the company personnel manual for guidance on leave notice. If an employer desires special provisions and conditions for a notice regarding military service, then it should make and announce corresponding changes in the manual. The law excuses employer notice, however, when military necessity or other circumstances make it impossible or unreasonable.

Generally, returning reservists are entitled to the same or a similar job, depending on the length of absence for active duty, with no loss of pay or benefits. Thus, if the salary and benefits of the position are better than they were when the reservist left for duty, then the reservist who returns to that position will be entitled to all corresponding enhancements. Meantime, employees called to active duty continue to enjoy insurance coverage, to accrue vacation time and to qualify for other company largesse.

The law excuses any employer from compliance if changed circumstances make reemployment impossible or unreasonable, or if reemployment would impose an undue hardship on the employer. In addition, an employer may decline reemployment to a returning reservist who formerly worked as a temporary employee or who has been dishonorably discharged.