Reemployment Rights Following Military Service

Law of the Month

Many Wisconsinites have temporarily departed home, family, and employment in support of our country’s current military operations. Wisconsin employers must be aware of their obligations to reemploy veterans upon their return from duty.

The Basics
Both Wisconsin and Federal law require that employers reemploy veterans upon their return from military service. Federal law, specifically enacted as the Uniformed Services Employment and Reemployment Rights Act, (USERRA) provides employees with employment and reemployment rights after service in the U.S. Armed Forces or the National Guard. Wisconsin law provides reemployment rights following National Guard service and, more recently, U.S. Armed Forces service as well. The employer must reemploy veterans, upon their return from service, to a position that reflects the pay, benefits, and seniority that the employee would have attained if not for the military service. Employers are required to provide their employees with notice of their rights under Federal law.

In Wisconsin, reemployment rights are determined by whether the employee is enlisted in the U.S. Armed Forces (Wis. Stat. § 21.79) or the National Guard (Wis. Stat. § 21.80). The employer must then apply the provisions of Wisconsin law or Federal law, whichever is the most favorable to the employee.

U.S. Armed Forces
In 2005, Wisconsin enacted law protecting employees that are enlisted in the U.S. Armed Forces. In most areas, Wisconsin law governing employees enlisted in the U.S. Armed Forces provides greater protections than both Federal law and its Wisconsin counterpart protecting employees engaged in National Guard service. Employees who enter active duty in the U.S. Armed Forces, and any person whose serves at the request of the federal government for national defense work as a civilian during a period officially proclaimed to be a national emergency must be restored to their former position or to a position of like seniority, status, pay, and salary advancement, as though employment had not been interrupted by the absence.

Under Wisconsin law, an employee enlisted in the U.S. Armed Forces is not required to give his or her employer advance notice of the need for leave. Federal law, which requires that an employee provide advance notice, would not apply.

Wisconsin law provides that an employee enlisted in the U.S. Armed Forces must return to work or apply for reemployment within 90 days of discharge from military service, regardless of the length of service. Federal law, which imposes shorter return requirements if an employees serves for less than 181 days, does not apply.

Under Wisconsin law, if an employee is hospitalized for a military service-related injury, the employee has up to six months after release from the hospital to report to work. Federal law, which requires a hospitalized employee to apply for reemployment no later than two years after the end of service regardless of when he or she is discharged from the hospital, would not apply.

An employee returning from enlistment in the U.S. Armed Forces is protected from discharge without cause for one year, irrespective of the length of the leave. Federal law, which provides a shorter duration of protections, would not apply. Employers must be aware that this restriction alters the normal at-will employment relationship in Wisconsin.

The only area where Federal law governs is length of service, as it more favorable to the employee than Wisconsin law. Under Federal law, if the employee has been in military service for a cumulative period of up to five years, the employee retains reemployment rights. Wisconsin law provides a four-year service limit, which would not apply.

National Guard Service
Reemployment rights after service in the National Guard are identical under Wisconsin and Federal law, provided the employee meets certain criteria. The employee must give advance notice to the employer of the need for leave, except in cases of military necessity and the U.S. Department of Defense recommends that notice should be given at least 30 days in advance of the leave. It is doubtful, however, that an employer could deny reemployment if notice was not given that far in advance. Permission to leave is not required, nor is the employee required to accommodate the employer’s needs concerning timing, frequency, or duration of the leave.

The employee may perform military service for a cumulative period of up to five years with each employer and retain reemployment rights with that employer. The cumulative period means that the employee can go in and out of military service several times, as long as the total time served while working for one employer does not exceed five years. Absent limited exceptions to the five-year limit, the employee will not retain reemployment rights after the five years of military service. The employee must not be dishonorably discharged.

The employee is entitled to reemployment if he or she timely returns to work or applies for work. If the employee’s military service was for less than 31 days, the employee must report to work no later than the next day following release from service (including reasonable travel time to get home plus an eight-hour rest period). If the employee’s military service was more than 30 days but less than 181 days, the employee must submit an application for reemployment within 14 days of discharge from service. If the employee’s military service was for more than 180 days, the employee must submit an application for reemployment within 90 days of discharge. If the employee is in the hospital for military service-related injuries, the employee must submit an application for reemployment on recovering, but no later than two years after the end of service.

The employee’s application for reemployment can be written or verbal and given to the person who appears to have authority to accept such application. An employer may designate a specific person who has authority to accept such applications and the failure to apply to the correct person would constitute failure to apply for reemployment.

Upon employer request, the employee must submit documentation showing the timing and duration of military service and the conditions of discharge, so that the employer can determine whether the employee satisfies the conditions for reemployment. The employer cannot delay reemployment, however, if such documents do not exist or are not readily available.

If the employee does not report to or apply for work within the time required by law, the employee can be subjected to the employer’s rules regarding work absence. The employer should add a provision to its military leave policy stating that a failure to timely report to work upon discharge from military service will be cause for dismissal.

An employee whose military service lasted for more than 30 days but less than 181 days cannot be discharged, except for cause, within 180 days after return to work. An employee whose military service lasted for more than 180 days cannot be discharged, except for cause, within one year after reemployment. As noted above, this restriction alters the normal at-will employment relationship in Wisconsin, which allows employers to terminate employees without cause. Under Federal law, cause may be based on the employee’s conduct, but the employee must be on notice that the conduct would constitute cause for discharge.

Employer Defenses
An employer may deny reemployment and assert certain defenses, but the employer must prove the applicability of any defenses. The employer may show that circumstances have changed since the employee’s leave of absence began so as to make reemployment impossible or unreasonable. To establish this defense, an employer may show that it was necessary to reduce the workforce or discontinue some particular department or activity. The employer cannot deny the veteran reemployment simply because the employer would have to displace an employee who had filled the position during the veteran’s absence.

The employer can assert that assisting the veteran to become qualified for the position would pose an undue hardship. To prove undue hardship, the employer must show significant difficulty or expense, in light of the cost of the action needed to help the veteran to qualify for the position, and the employer’s size and overall financial resources.

An employer also may assert that employment was temporary–for a brief, non-recurrent period, and that the employee had no reasonable expectation of continued employment.

Bottom Line
In order to ensure compliance with Wisconsin and Federal law, employers must first determine whether an employee is enlisted in the U.S. Armed Forces or the National Guard. The employer must then compare Wisconsin and Federal law and “mix and match” in order to provide the employee with the most protection available under the law.

In our current climate of public opinion, employers must be certain that any attempt to deny reemployment to a veteran is well-supported in fact and under the existing law. Consultation with legal counsel is recommended for compliance with laws regarding reemployment, but is essential before an employer decides that it will not reemploy a veteran.

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