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Guard and Reserve 2010: Rights and responsibilities

Reservists’ rights are protected under state and federal law, whether the service members are in drilling or active status. These rights include employment, financial and legal protection.

Reservists also have certain responsibilities, including:

• Showing up on time for scheduled drills and training.

• Completing training required by enlistment contracts.

• Keeping their commander informed of their employment and residency status.

• Providing prior written or spoken notice of military service to their employer.

• Reporting back to work when released from service within the time limits established by law.

• Keeping employers informed of drill dates, annual training and advanced warning of possible deployment.

Reservists who cannot perform military duty because of conflicts with their civilian jobs must contact their units to resolve the problem.

If the duty cannot be rescheduled, employers must allow service members to perform military service.

Employment rights: Basic protection

The Uniformed Services Employment and Re-employment Rights Act, or USERRA, applies to all employers, regardless of size, including U.S.-controlled or U.S.-owned companies overseas.

Reservists are protected under the law as follows:

• Employers may not deny employment, re-employment, retention in employment, promotion or any other benefit of employment because of past or present membership in the armed forces or intent to join the military. This applies to active and reserve service, whether voluntary or involuntary. Employers must grant time off for military duty. Upon completion of military service, reservists must be given their civilian jobs back, provided that they meet the basic eligibility criteria of the re-employment rights law. Upon re-employment, reservists generally are entitled to the seniority status and pay rate they would have attained had they not been absent.

• Employers must make “reasonable efforts” to train or retrain returning employees and accommodate any disabilities incurred or aggravated during military service.

• National Committee for Employer Support of the Guard and Reserve. This Defense Department agency gains and maintains employers’ support for the Guard and Reserve by recognizing outstanding support, increasing awareness of the law, and resolving conflict through mediation.

NCESGR relies on several thousand volunteers to help answer questions and refer reservists to resources that can help them in all 50 states, the District of Columbia, Puerto Rico, Guam, the Virgin Islands and Europe. Among the volunteers, 900 ombudsmen are trained specifically to mediate for employers and their employees who serve in the Guard and Reserve.

Contact: 800-336-4590; www.esgr.mil.

Employment rights: Enforcement

The Uniformed Services Employment and Re-employment Rights Act (USERRA) has enforcement provisions. Monetary remedies usually are limited to what a reservist lost in seniority pay or status. The law also allows for reimbursement of attorney fees and other litigation costs to successful parties.

Disputes between reservists and employers are mediated by various agencies. They include:

• Veterans Employment Training Service. Disputes that cannot be resolved by informal mediation may be investigated by the Department of Labor’s Veterans Employment Training Service.

VETS provides several ways for reservists to begin the process of investigation. For example, the e-VETS Resource Advisor is an online program designed to help service members understand their rights and responsibilities and to learn whether a dispute warrants an official claim and investigation. To learn more, contact www.dol.gov/vets.

VETS also has developed an Internet-based system that allows USERRA claimants to officially submit a claim via the VETS Web site using an electronic version of Form 1010 (E1010). VETS staff members are available to provide technical assistance prior to filing an official claim. These can be accessed at www.dol.gov/vets/programs/userra.

During an investigation, VETS has access to all necessary records and documents of both employers and employees, the right to interview all parties involved, the right to subpoena witnesses and the right to apply to any U.S. District Court when noncompliance issues arise.

For more information, visit www.dol.gov/vets or call 202-693-4700.

Federal employer cases are referred to the Office of Special Counsel. If satisfied that the claim has merit, this office may represent the claimant before the federal Merit Systems Protection Board. Alternatively, federal employees have the option of appealing directly to the Merit Systems Protection Board or with a private attorney.

Nonfederal cases are referred to the Department of Justice for consideration of representation in U.S. District Court. Claimants may proceed on their own or with a private attorney.

Employment rights: Health insurance

Reinstatement of health insurance after returning from military service is now automatic. Moreover, employers must keep health insurance in place for employees who are serving in the reserves for less than 31 days. Reservists pay normal employee costs, if any, for this coverage.

Upon request, employers must provide continuation of health insurance to reservist employees serving longer than 30 days. This extended coverage continues for 24 months after the person’s absence begins, until the date the person returns to work or until the deadline for applying for re-employment, whichever is sooner.

Reservist employees who elect continued coverage for 31 days or more may be required to pay up to 102 percent of the premium.

Reservists returning to civilian jobs after their service have the right to resume health care coverage immediately, with no waiting period or exclusions for pre-existing conditions, except for conditions determined by the secretary of veterans affairs to be service-connected.

Reservists also are entitled to enroll in another group health plan, such as the health plan of a spouse. Enrollment must be made within 30 days of losing coverage under their employer’s policy.

All of the health insurance provisions available by law apply to both the reservist employee and his covered dependents.

Employment rights: Leave

Service members must give employers spoken or written notice of military service. Employers are then required to grant time off. Examples include:

• Military missions. Time off must be granted whether the reservist has been ordered to federal active duty or volunteers for a federal mission. Federal law typically does not cover state activities for disaster relief and other similar missions, but many states have laws similar to federal law to cover such contingencies.

• National Guard or Reserve unit training. This includes monthly unit training assemblies and annual training for members of drilling units, as well as any other training the military deems necessary, such as acquiring new skills or retraining in a new specialty when a reservist’s unit is deactivated.

Employment rights: Notification

To be protected under the law, reservists must notify employers of an upcoming military absence as soon as possible. This should be done in writing, but verbal notification is acceptable.

If the reservist cannot make the notification, an “appropriate officer” of the service can do it. Still, the law provides for times when, because of “military necessity,” no notice is required. The secretary of defense must determine such necessity, but usually it would be a military contingency requiring rapid mobilization.

Reservists don’t have to provide employers with a copy of their orders, but officials recommend doing so to avoid confusion.

Employment rights: Pay

Private employers typically are not required to pay employees on military leave, although some do. Others make up the difference between the employee’s military and civilian salaries if they earn less while in uniform.

While employers cannot require employees to use vacation time for military service or training, reservists can use vacation time if they choose.

Federal employees receive 15 days of paid military leave each fiscal year. Unused military leave can be rolled over into subsequent fiscal years. However, the maximum balance allotted to federal employees each fiscal year is capped at 30 military leave days.

Federal employees who are called to military duty as reservists may be charged federal leave only for the hours that the employees otherwise would have worked at their federal jobs. For example, they may not be charged military leave for weekends if they normally do not work weekends.

The Office of Personnel Management has details on leave policies for federal employees. See https://www.opm.gov/oca/leave/html/milQA.asp.

Employment rights: Re-employment

A service member who receives a dishonorable or other punitive discharge is not entitled to re-employment.

The law requires reservists to return to work by a specific date once released from duty. Reservists on active duty for:

• Less than 31 days must return to work at the beginning of the next regularly scheduled shift on the first full calendar day following completion of their service, safe travel back home and an eight-hour rest period.

• More than 30 days, but less than 181 days, must apply for re-employment no later than 14 days after their release.

• More than 180 days have up to 90 days after completion of service to ask for their jobs back.

Employment rights: Protected status

The law provides a period of protection for reservists returning from active duty to prevent so-called bad-faith rehiring, in which companies hire reservists to comply with the law and then fire them.

Reservists previously employed for more than 30 days can’t be fired without cause during their first six months back on the job. Those returning after more than 180 days of service can’t be fired without cause within one year.

The right to return to work is not absolute. Returning Guard and reserve members may not be re-employed if the employer’s circumstances have changed in ways that make re-employment unreasonable or impossible.

The law requires employers to provide refresher training to sharpen employees’ skills and additional training if new equipment or technologies are used on the job. Reservists who incur disabilities as a result of military service have the right to be rehired and, if necessary, retrained for their former jobs.

Seniority. The USERRA law is based on the escalator principle. If the employee is in a position in which seniority would have been gained if not for activation, the employee must be given the seniority and benefits associated with it upon re-employment. Vacation and sick leave do not accrue while activated. However, if the employee gained seniority during military leave, and the new rating allows for additional vacation or sick leave, he has the right to receive these benefits upon re-employment in the new seniority ranking.

Other rights: Default judgments

Courts are barred from entering a default judgment against a service member for failure to respond to a lawsuit or appear at trial. The only exception is if the plaintiff can provide the court with an affidavit stating the defendant is not on active duty. If no affidavit is filed, and the defendant is in the military, the court will appoint an attorney to seek a delay in the proceedings.

Courts also can require plaintiffs to secure bond to protect defendants against harm.

Other rights: Foreclosure

Service members are protected against foreclosures on mortgages and deeds of trust under the following conditions:

• The relief is sought on an obligation secured by a mortgage, trust deed or other security in the nature of a mortgage on real estate or personal property.

• The obligation originated before entry into active duty.

• The property was owned by the service member or family member before entry into active duty and is still owned by that person.

• The ability to meet the financial obligation is affected by the member’s active-duty obligation.

The Housing and Economic Recovery Act of 2008 expanded foreclosure protection for service members returning from deployment.

Previously, the law gave service members and veterans 90 days of protection from foreclosure after deployment. The change in law now gives them nine months to catch up on payments, make alternative arrangements with a lender or, in the worst-case scenario, sell their home.

Other rights: Installment contracts

Reservists who signed an installment contract to purchase real or personal property prior to entering active duty are protected under the law if their ability to make payments is “materially affected” by military service.

However, the member must have paid a deposit or installment payment prior to entering active duty. The seller is prohibited from exercising any right or option to rescind or terminate the contract or repossess the property unless authorized by court order.

Other rights: Interest rates

When an obligation was incurred before entering active duty, the interest rate on the debt may be reduced to 6 percent. However, the reduced rate is not automatic; service members must show that their ability to pay the debt is materially affected by their service.

Reservists should contact their creditors, preferably in writing, and include a copy of their military orders.

Other rights: Life insurance

If service members purchase commercial life insurance prior to entry into service and later find they no longer can pay the premiums, the government may guarantee payment of the premiums or require that the insurance carrier treat the unpaid premiums as a loan against the policy. Upon separation, members have up to two years to pay the premiums.

Other rights: Stay of execution judgments

For members who are in military service, or were in service within the past 60 days, a court may stay the execution of judgments, court actions, attachments and garnishments.

If a stay is requested, it must be granted unless the court finds that the member’s ability to comply with the order or judgment is not affected by military service.

Other rights: Stay of proceedings

A civil court proceeding can be stayed when the requirements of military service prevent service members from being present to protect their legal rights. The stay provisions remain in effect during the period of active duty plus 60 days.

Other rights: Taxes

The states in which service members legally reside can tax military income and personal property. Legal residence does not change because a member goes on active duty and moves to another state.

If a service member’s ability to pay the tax is impaired because of military service, the law defers collection of state or federal income taxes for up to six months after termination of service.

No interest or penalty may be charged for the nonpayment of any tax on which collection was deferred. In addition, property cannot be sold to satisfy a tax obligation or assessment except with a specific court order.

Other rights: Servicemembers’ Civil Relief Act

This law allows service members to suspend or postpone certain obligations so they may devote their full attention to military duties. The law applies in all states, the District of Columbia and all U.S. territories. Reservists are protected from the date they receive orders to report to active duty until 30 to 90 days after the date of discharge from active duty.

The law provides for:

• A 6 percent interest-rate cap on preservice loans and loan forgiveness for interest in excess of 6 percent, if a member’s ability to make higher interest payments is materially affected by military service.

• Eviction protection and a formula to calculate rent ceilings.

• Extensions on termination of rental property and automobile leases.

• Protection from higher tax brackets by preventing states from factoring a service member’s income into that of a nonmilitary spouse working in the state.

The Veterans Benefits Act of 2004 also provides SCRA protection to National Guard members called to state active duty if:

• The duty is the result of a federal emergency.

• The request for active duty is made by the president or secretary of defense. Provisions under the VBA include such issues as VA home loans, increased maximum guaranty amounts, housing, adjustable rate mortgages, loans and funding fee exemptions.

If you think you qualify for protection under the SCRA, contact a military legal assistance office.

Contact: For more information,

see the U.S. Armed Forces Legal Assistance Web site at http://legalassistance.law.af.mil.

Other rights: Termination of lease

Leases on businesses or homes may be terminated by a Guard or reserve member if the following conditions are met:

• The lease was entered into before entering active duty or before being recalled to active duty for a period of 180 days or more, if the service member receives orders for a permanent change of station or orders for deployment for 90 days or more.

• The leased premises have been occupied for the above purposes by the member or dependents.

To terminate a lease when called to active duty, a member must deliver written notice to the landlord. The effective date of termination is as follows:

• For month-to-month rentals, termination is effective 30 days after the next rental payment is due, subsequent to the date when the notice of termination is delivered to a landlord.

• For all other leases, termination becomes effective on the last day of the month following the month in which proper notice is delivered. The service member in question is required to pay rent only for the months before the lease is terminated.

If rent has been paid in advance, the landlord must prorate and refund any unused portion. If a security deposit was required, it must be returned upon termination of the lease.