Job Rights For Reservists And
Members Of The National Guard
SEYFARTH, SHAW, FAIRWEATHER & GERALDSON
On Wednesday, August 22, 1990, President Bush
activated nearly 50,000 reservists and National Guard
Members (collectively, the "reservists") to support U.S.
military forces in the Middle East. These reservists began receiving orders to report for active duty on Friday,
August 24, 1990, and it is possible that additional reservists may be activated in the future. The President
has the authority to call up to 200,000 of the Nation's 1.7
million reservists without congressional approval.
As a result of the President's decision to activate
military reservists, a number of questions have been
raised by employers regarding military leaves of absence and veterans' reemployment rights. The Veterans' Reemployment Rights Act of 1958 (the"VRRA" or
the "Act"), as amended, prohibits discrimination
against employees who leave their jobs to serve in the
Armed Forces and establishes a comprehensive set of
statutory reemployment rights. The purpose of the Act
is to ensure that veterans suffer no detriment for having
left their civilian employment to serve in the Armed
Forces. Significantly, the rights of reservists who are
called to active duty do not generally differ from the
rights of inductees, unless otherwise specified.
COMMONLY ASKED
QUESTIONS AND ANSWERS
1. QUESTION: What employers are covered by the
VRRA?
ANSWER: The VRRA applies to all public and
private employers.
2. QUESTION: What employees have rights under
the VRRA?
ANSWER: All employees whose employment is
"other than temporary" when they are called to
duty have rights under the VRRA. Courts interpreting the Act have defined "temporary" very narrowly and have accorded "other than temporary"
status to short-term seasonal employees and persons who are employed pursuant to contracts for a
specified term. Employers should seek legal advice
before concluding that a position is temporary.
3. QUESTION: Is an employer required to grant a
military leave of absence to a reservist called to
duty?
ANSWER: Yes.
4. QUESTION: May an employer deny military
leave to an employee who volunteers for active
duty?
ANSWER: No. The VRRA accords the same rights
to volunteers as to those who serve involuntarily.
5. QUESTION; Are there different types of duty that
a reservist can be called up to perform?
ANSWER: Yes. A reservist is called to "initial active
duty training" when he or she first joins the Reserve
or National Guard. Other training categories are
"active duty for training" and "inactive duty training" (drills). A reservist also may be called to "active duty" for a period not to exceed 90 days or for
an indefinite period. These service categories help
determine a reservist's rights under the VRRA.
6. QUESTION: Are employees who are called to
duty required to give their employers notice in
order to preserve their rights under the VRRA?
ANSWER: This depends on the nature of an employee's orders. Employees who are called to "active duty" are not required to give notice. Similarly,
employees who are called to "initial active duty
training" are not required to give notice. In contrast, employees who are called for "active duty for
training" or "inactive duty training" are required to
notify their employers, although the Act does not
describe how much notice is necessary. Employers
should request affected employees to give as much
advance notice as possible. The U.S. Department
of Labor, Veterans' Employment and Training
Service, also encourages reservists to provide advance notice whenever practical.
7. QUESTION: May an employer demand to know
when an employee anticipates returning from a
military leave?
ANSWER: No.
October 1990 / Illinois Municipal Review / Page 9
8. QUESTION: Must an employer pay an employee
during his or her military leave of absence?
ANSWER: No. Some employers do, however, voluntarily pay reservists the difference between their
military and civilian pay as a matter of policy.
9. QUESTION: Must an employer continue to provide health insurance coverage to employees on
military leave of absence?
ANSWER: The answer depends on what the employer's policy is regarding continuation of health
insurance benefits during other unpaid leaves of
absence. If the employer typically continues coverage for employees on non-military leaves, it must
also continue coverage for employees who are on
military leave. If the employer's policy is not to
continue coverage during leaves, it need not do so
for those on military leave.
The military provides basic insurance coverage
to reservists immediately upon calling them for
duty and to their dependents 30 days later. The
military does not provide dental or vision coverage.
Upon an employee's return to his or her civilian
employment, health insurance coverage must be
provided immediately even if it is the employer's
policy to require new or returning employees to
complete a waiting period prior to qualifying for
coverage. Moreover, the employer may not exclude a pre-existing condition from coverage if the
condition arose during the employee's tour of duty.
10. QUESTION: Must an employer reinstate a returning veteran to his or her prior position?
ANSWER: An employer must reinstate a returning
veteran to his or her prior position or to a position of
"like seniority, status, and pay" as if his/her work
had not been interrupted by service in the Armed
Forces. If a veteran is unable to perform the duties
of his or her prior position due to a disability sustained during his/her military leave, an employer
must provide the veteran with a position that
he/she is qualified to perform, if such a position
exists. Moreover, the position must provide the disabled employee with like seniority, status and pay
as his/her prior position, or the "nearest approximation thereof."
On the other hand, an employee who would
Page 10 / Illinois Municipal Review / October 1990
have been laid off or discharged but for his/her
military leave of absence may not be entitled to
reinstatement upon his/her return. Employers
should consult with counsel before determining
that a returning veteran is not entitled to reinstatement.
11. QUESTION: If an employer gives raises to all
employees while an employee is on military leave,
is the employee on leave also entitled to higher pay
upon his or her return from duty?
ANSWER: Yes. Answers to questions of this nature
require applying the "escalator" principle — that
returning veterans are to be treated by their employers as if they had never left with respect to
compensation, benefits, seniority, promotions, and
the like. Employers should consult with counsel
about the escalator principle's application.
12. QUESTION: Are any other employment rights or
benefits protected by the Act?
ANSWER: Yes. An employee cannot be denied a
promotion or any other advantages that he/she
would have received if he/she had not been called
to duty.
13. QUESTION: What if an employer has sold its business?
ANSWER: Purchasers of businesses are bound by a
predecessor's obligations under the VRRA.
14. QUESTION: Does a returning veteran have to
apply for reemployment?
ANSWER: This depends on a veteran's service
category. If the veteran is returning from "active
duty for training" or "inactive duty training," he or
she need not reapply, but must simply report for
work on the next regular work day after the last day
of travel. A reservist who was ordered to active
duty for not more than 90 days or a veteran returning from "initial active duty training" must apply
for reemployment within 31 days of release from
duty. Such a reservist has up to one year to reapply
if he/she is hospitalized incident to his/her service
in the Armed Forces and spends that year in the
hospital. All other returning veterans have 90 days
October 1990 / Illinois Municipal Review / Page 11
from release from duty or discharge from hospitalization (for up to one year after discharge) to apply
for reemployment.
15. QUESTION: How long must an employer keep a
job open for a reservist?
ANSWER: Usually four years, although this period
may be extended to five or even six years under
certain circumstances. Of course, an employer may
temporarily fill a job left open by an employee on
military leave.
16. QUESTION: Can an employer require an employee to use his or her accrued vacation for a
military leave of absence?
ANSWER: No. Employees may, however, use vacation time if they so desire.
17. QUESTION: Must benefits such as vacation and
sick days continue to accrue during an employee's
military leave of absence?
ANSWER: This depends on an employer's policies.
Benefits that accrue merely by virtue of continued
employment must accrue during a military leave of
absence. Benefits that require more than simple
continued status as an employee to accrue, i.e.,
benefits that accrue by virtue of completing a bona
fide work requirement, are not protected by the
VRRA.
18. QUESTION: Is a veteran entitled to any special
treatment upon his/her return to civilian employment?
ANSWER: This depends on a veteran's service
category. Reservists whose orders were for active
duty of not more than 90 days or for "initial active
duty training" cannot be discharged "without
cause" for six months after reemployment. Veterans returning from "active duty for training" or
"inactive duty training" have no special discharge
protection. All other veterans are protected from
discharge without cause for one year after reemployment.
This review of the VRRA is intended as an overview
of key provisions of that Act. If you need additional
information or assistance in applying general rules to
specific cases, please contact any of the following attorneys: William P. Schurgin, Lisa A. Lopatka, Douglas
A. Darch or Jeffrey K. Ross in Chicago; Donald L.
Rosenthal in Washington, D.C.; Raymond R. Kepner in
Los Angeles; or William J. Dritsas in San Francisco. •
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