TO: Clients of Shawe Rosenthal, LLP
RE: Employee Military Leave Rights
and Company Anti-Harassment Policies
DATE: September
20, 2001
The
horrific events of this past month have touched all Americans. Even as individuals and institutions attempt
to regain some sense of normalcy, the fact remains that
things are now different. A
substantial number of military reservists are being called
into active duty. Regrettably, individuals of Middle Eastern
or Muslim origin, or even appearance, are in some instances
being unfairly targeted for harsh, and sometimes violent,
treatment. In light of these events, we are taking this opportunity to review
employee military leave rights under federal law. We also are advising our clients to reiterate
their anti-harassment and anti-discrimination policies
to make it clear that harassment and discrimination on
any basis, including religion and national origin, will
not be tolerated. If
you have any questions about these issues, which we can
address here only in brief, please do not hesitate to call
any of our attorneys.
PROTECTION FOR CIVILIANS WITH MILITARY
COMMITMENTS
Under the federal
Uniformed Services Employment and Reemployment Act, employers,
regardless of size, cannot deny any individual initial
employment, reemployment, retention in employment, or any
other benefit of employment because of the individual's
military service obligations. Included
among the Act's protections are the following:
- Employees
who, whether voluntarily or involuntarily, provide military
service (including participation in military training)
are entitled to take unpaid leave for that service, and
to reemployment at the end of such service, provided:
1) the employee gives advance written or verbal
notice of such service if he/she is able to do so;
2) the cumulative length of the current absence,
and all previous service-related absences, does not exceed
five years (but note that the five-year cap does not include
periodic or special reserve training, or any involuntary
service performed in a time of national emergency);
3) at the end of the service-related absence, the employee reports
to work, or submits
an application for re-employment, within the statutorily-mandated time limits (which vary depending on the
length of time the individual has been on leave).
- Employees
absent due to military service may elect to continue
health plan coverage, with certain restrictions and limitations.
- In
most instances, employees returning from military service
must be re-employed in the position they would have attained
had their employment not been interrupted. If
the employee is not qualified for the position upon return,
the employer must make reasonable efforts to qualify
the individual.
- Employees
are entitled to the seniority and benefits rights they
would have attained had their employment not been interrupted. The rights of such re-employed individuals to pension benefits
are determined under the federal law.
- Employees
may waive these rights if they provide written notice
of intent not to return to employment upon completion
of their service. The written waiver must meet certain
requirements.
- Remedies
for people who feel these rights have been violated include
compensation for lost wages and benefits, an equal amount
in liquidated damages, attorney's fees, court costs and
reinstatement rights.
REITERATION OF POLICIES
Given the reports
of violence against people of Middle Eastern and Muslim
origin (or even those who appear to be), employers would
be well advised to remind their employees that harassment
and discrimination will not be tolerated in the workplace. We recommend that companies redistribute polices
prohibiting such conduct and ensure that procedures for
making complaints are well publicized. To
the extent that company policies do not reflect the fact
that harassment and discrimination based on nationality
or religion are prohibited, the policies should be revised. Finally,
any complaints of harassment should be investigated swiftly
and thoroughly, with appropriate action taken at the conclusion.
These actions
may help minimize disturbances in the workplace by reminding
employees that they are obliged to be civil toward one
another. Such proactive
steps may also help protect your company against liability
against claims of harassment in the event a lawsuit ensues.
|
