Legal Ease: School Law Notes/Federal law governs treatment of employees after military service

The Uniformed Services Employment and Re-employment Rights Act (USERRA), adopted by Congress in 1994, sets forth the rights and responsibilities of employees who must temporarily leave their jobs for military service. It was enacted to eliminate discrimination against employees and to minimize workplace disruption.

USERRA applies to all public school districts regardless of size. In light of the ongoing war, school districts should review their employment and re-employment policies and practices to make sure they accommodate the rights of U.S. service members.

USERRA requires employees to notify their supervisors before taking a leave of absence for military duty. Such notice must be provided either orally or in writing and should be given as far in advance as the circumstances allow. However, this requirement is waived if notice is prohibited by military necessity or is otherwise impossible or unreasonable.

Once an employee gives notice, USERRA does not require the employee to obtain the employer’s permission. Additionally, USERRA does not require employees to inform their employer whether they intend to return to work after completing military service.

Employers also have notice requirements under the statute, including the obligation to inform employees of the rights, benefits, and protections afforded by USERRA. The U.S. Department of Labor publishes a poster employers can use to let employees know their rights under the statute.

USERRA does not require employers to pay employees’ salaries while they are on military leave. However, some state laws do establish such requirements.

Under USERRA, employees performing military duty for 30 days or more may choose to continue employer-sponsored health insurance for up to 24 months, but they can require service members to pay up to 102 percent of the full premium. Employees performing military service for less than 31 days must receive the same health care coverage as if they had remained in their jobs.

After completing military service, an employee must either -- depending on the amount of time spent in the military -- report back to work or submit a timely application for re-employment.

Generally speaking, employees returning from military service must be re-employed in the position they held or in the position they would have attained had they not served in the military. The latter is called the “escalator position.” However, if a probationary teacher leaves for military service, the school district may require that person to continue in the probationary period when he or she returns.

USERRA also affords returning service members some protection from discharge. If employees have served between 31 and 180 days, during their first six months of re-employment, they can only be discharged for “cause.” If employees have served more than 180 days, during their first year of re-employment, they can only be discharged for “cause.”

School boards may be frustrated by the required military service of a school district employee, especially when the staff member is called to serve on short notice during a crucial time, such as the end of the school year.

While USERRA prohibits districts from discriminating against employees because of their military service, school districts are not without options.

The relatively recent USERRA regulations state that employers may bring concerns about the timing, frequency, and duration of military service to the “appropriate military authority.” Doing so will not be considered evidence of discrimination.