Rise in Military Leave: Job Protection Rights under the Federal "USERRA" Law
By: J. Andrew Kinsey, Esq.

As hundreds of thousands of uniformed military personnel are called to and return from active duty, employers need, now more than ever, to become familiar with the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA)¹. This act was enacted by Congress to protect individuals who leave civilian jobs to serve in the U.S. military. The primary provisions of USERRA are summarized below.

USERRA applies to all public and private employers, including state and federal government employers. USERRA covers all uniform personnel² regardless of the length of time they have been in their jobs or whether they are classified as probationary, permanent, full-time or part-time employees.

Employees are required to provide employers written or verbal notice of the call to service, unless military necessity makes it impossible or unreasonable to do so. No specific "notice" period of time is set forth in the statute. An employee also must give notice of the intent to return to work. The amount of notice required starts at the end of the military service and varies between eight hours and 90 days, depending upon the length of the absence. If the returning veteran is hospitalized or recovering from a service-related injury, the notice period is extended until the end of recovery from the injury for a period not to exceed two additional years.

An employer is required to provide an unpaid leave of absence of up to five years to military personnel who are called to active duty, active duty training, inactive duty, inactive duty training and full-time National Guard duty. Leave also must be provided to allow absence for a physical examination and for funeral honors performed by National Guard or Reserve members. These rules apply whether the leave is voluntary or involuntary.

The law prohibits discrimination and retaliation by employers with regard to past, current, or future military obligations. These protections cover discrimination in hiring, promotion, reemployment, termination, and the application of benefits. Employers also are prohibited from retaliating against anyone who files a claim under USERRA, testifies, assists, or participates in a related investigation or exercises any USERRA right. These rules apply to all employees, whether or not they have performed military service.

The law also protects returning veterans from discharge. If an employee has served in the military for a period of between 31 and 180 days, he or she may not be terminated without cause for six months following reemployment. If the service was for more than 180 days, then the employee cannot be terminated without cause for a period of one year. There are no protections against termination for an employee whose military service was for 30 days or less.

Although employees called to active duty are usually given full medical benefits by the government, employers must continue to provide medical benefits during military leave. If the duration of the leave is fewer than 31 days, the coverage must continue uninterrupted as it existed prior to the leave. If the leave reaches or exceeds 31 days, the employer must offer benefits similar to those required by COBRA³.

If the employer provides any seniority-based benefits, service time must be counted toward eligibility for the benefit. Service time also must be counted toward pension benefits if the employee returns to work. Employers must provide an opportunity for employees to make contributions to cover the period the employee was on military leave.

When an employee returns from military duty, he or she must be reinstated to the position the employee would have held if he or she had not performed the military service, even if this means a promotion⁴. If the employee has not been properly trained for the promotion, the employer is obligated to provide whatever training is needed. If the training efforts are not successful, then the returning employee is entitled to the job he or she previously held, instead of the higher-level position.

If, because of a service-related injury, and after all possible reasonable accommodations, the veteran cannot become qualified for the higher-level position or perform his or her previous job, the employer must find the veteran a position of equal status and pay, or one that is most nearly equivalent. If the veteran cannot become qualified because of a reason that is not service-related, then he or she must be placed in a lower level position with the same seniority. Lesser pay may be allowed in these limited circumstances.

An aggrieved employee may seek enforcement through the U.S. Department of Labor, the U.S. Attorney General, or by filing a private civil suit. Available relief includes job reinstatement, back pay, lost benefits, and attorneys' fees and costs. A court also may double the award for back pay and lost benefits as a sanction.


¹ 38 U.S.C. §§ 4301 et seq.
² Uniform personnel includes persons in the Army, Navy, Marines, Air Force, Coast Guard, Public Health Service Commissioner Corps, Army National Guard, Air National Guard, the reserve components of these services, and any other category dispatched by the President in time of war or national emergency.
³ Consolidated Omnibus Retirement Income Security Act, 29 U.S.C. § 1161, et seq., requires an employer to allow a former employee to continue to participate in the employer's health benefit plan for a period of time.
⁴ An employer need not reinstate an employee after military leave if: (1) he or she received a dishonorable or bad conduct discharge; (2) reemployment is "unreasonable or impossible" due to a change in business circumstances (no openings, filling the position, and successor ownership do not qualify for this exception); (3) reemployment would cause an undue hardship to the employer; or (4) the initial job was for a non-recurrent, brief period of time, with no expectation of reemployment, notwithstanding the employee's military service.

Gender Identity or Expression Amendment to NJLAD
On December 19, 2006, Governor Jon Corzine approved bill no. S. 362 amending the New Jersey Law Against Discrimination (NJLAD) by adding "gender identity or expression" to the list of protected characteristics. When the amendment takes effect on June 16, 2007, it will be unlawful to discriminate in housing, contracts, employment, public accommodations, lending and union membership against people "having or being perceived as having gender-related identity or expression whether or not stereotypically associated with a person's assigned sex at birth." The bill was sponsored by Senators Ellen Karcher and Joseph Vitale, and Assembly members Reed Gusciora, John McKeon, Bonnie Watson Coleman and Joseph Vas.

New Jersey Raises the Minimum Wage
New Jersey recently passed legislation to increase the minimum wage to $7.15 and to create a permanent New Jersey Minimum Wage Advisory Commission (NJMWC) to annually evaluate the state's minimum wage. The commission will evaluate the adequacy of the minimum wage and report its findings and recommendations to the Governor and the Legislature. The first report will be due no later than December 2007. Subsequent reports will follow at one-year intervals.

The NJMWC consists of five members: the Commissioner of Labor and Workforce Development, ex-officio and four members appointed by the Governor. Two members were nominated by business organizations and two by the New Jersey State AFL-CIO. Members are appointed to a four-year term and serve without compensation.

On January 10, 2006, the U.S. House of Representatives passed a bill to implement a staggered increase to the federal minimum wage which would rise above the New Jersey minimum wage in two-and one-half years. The U.S. House of Representatives seeks to raise the federal minimum wage to $5.85 in the first six months after enactment, to $6.55 the following year and to $7.25 in the year after.

Contributing to these articles on Labor and Employment issues was David L. Norris, Esq., whose biography appears under About Our People in this issue of Florio Perrucci Steinhardt & Fader's Email Update.

Exceptional Public Servants
There are now three active mayors at Florio Perrucci Steinhardt & Fader,
L.L.C. Brian R. Tipton, a partner in the firm's Phillipsburg office, was appointed in January as the Mayor of Harmony Township. He joins Douglas J. Steinhardt, Mayor of Lopatcong Township, and Mark R. Peck, Mayor of Bloomsbury. Doug, a named partner in the firm who also heads the firm's municipal and family law groups, began his public service in January 2000 and is in the second year of his third term. Mark, a member of the firm's municipal and real estate and land use groups, has been serving as mayor since January 2004.

In addition to the three current mayors, Paul T. Fader completed two successful terms as Mayor of the City of Englewood. Paul joined the firm as a named partner in January 2006 after serving as Chief Counsel to Governors James McGreevey and Richard Codey, and heads the firm's office in Rochelle Park, N.J.

"Based on the extraordinary experiences of these and other firm members, we have developed a state-wide reputation for excellence in working with all governmental organizations in a variety of practice areas," said Governor James J. Florio who also served as a New Jersey Assemblyman and U.S. Congressman before being elected to New Jersey's highest office. "The bipartisan perspective of our firm gives us excellent insights that benefit private and corporate clients in their work with all forms and levels of government in New Jersey. Clearly, Florio Perrucci Steinhardt & Fader, L.L.C. has the depth and breadth of government-related experience unparalleled in the state."

The purpose of this alert is to inform our clients and friends of recent developments in the law. It is not intended nor should it be used as a substitute for specific legal advice or opinions, as legal counsel may only be given in response to inquiries regarding particular factual situations.

Mr. Kinsey is the chair of the Labor and Employment Group and a partner in the firm. He specializes in day-to-day desk counseling for clients faced with workplace issues, drafts personnel policies and procedures to comport with federal and state laws, and handles all forms of employment litigation, including civil trials and appeals. Andrew has extensive experience defending healthcare, utility, construction, railroad, hotel, restaurant and public-sector clients from various types of discrimination, whistle blower, FELA and civil rights claims. In the field of traditional labor law, he negotiates collective bargaining agreements, and handles arbitration, NLRB, PERC and Merit Systems Board proceedings. In addition, Andrew handles commercial and construction law matters.

Andrew received a bachelor of science degree cum laude from American University where he interned for a member of Congress and a member of British Parliament. He earned his Juris Doctorate cum laude from New York School of Law in 1990 where he served as Chief Articles Editor for the Journal of Human Rights, and thereafter clerked for the Honorable F. Michael Caruso, Judge of the Superior Court of New Jersey in Newark. Andrew is a member of the New Jersey Bar Association and a past participant in the Sidney Reitman Labor and Employment Law Inn of Court. He is also a member of the Society of Human Resource Managers.

Andrew formerly practiced law with Peckar & Abramson and Appruzese, McDermott, Mastro & Murphy where he exclusively represented management in all types of labor and employment matters. He is admitted to practice law in the state courts of New Jersey, New York and Pennsylvania, the U.S. District Courts for the District of New Jersey and the Southern and Eastern Districts in New York, and the Eastern District in Pennsylvania.

Here We Grow Again
Florio Perrucci Steinhardt & Fader, L.L.C. will open an office in May located in Woodbury, N.J., to serve the firm's growing client base in southern New Jersey and the greater Philadelphia area. Offices will be located at 108 Euclid Street. More information on the new office and its staff will be included in the next Florio Perrucci Steinhardt & Fader Email Update.

About Our People

Donald E. Souders Jr. has joined the firm as a partner in the Phillipsburg office. Don previously practiced law as a sole practitioner in Phillipsburg, representing clients in real estate, land use, business formation, criminal defense, commercial litigation and family law matters. He has more than 15 years of trial experience, achieving favorable settlements and verdicts for his clients in many jurisdictions. Don holds a bachelor of science degree in criminal justice from the University of Delaware and a Juris Doctorate from Widener University School of Law. He was an associate attorney with Mudge Rose Guthrie Alexander & Ferdon in New York City and New Jersey for two years before opening his own law office. His trial work has included civil and criminal jury trials primarily in Hunterdon and Warren Counties, N.J., and Lehigh and Northampton Counties, Pa., as well as throughout both states including Federal Court in Trenton, N.J., and Philadelphia, Pa. Don is admitted to practice law in New Jersey and Pennsylvania.


Also new to the firm in its Phillipsburg office is David L. Norris who is an associate working in the areas of litigation defense, municipal, labor and employment, and family law. Dave holds a bachelor of science degree from Cornell University and a Juris Doctorate from Rutgers University School of Law at Camden, N.J. where he participated in the Hunter Advanced Moot Court. While in law school, he served as a judicial intern for the Honorable John J. Hughes and the Honorable Anne E. Thompson of the Federal District Court in Trenton, N.J. Later, Dave was a law clerk for the South Jersey Legal Service's Senior Advocacy Division in Camden; the New Jersey Attorney General's Office in Trenton, and with the law firm of Carella, Bryne, Bain, Gilfillan, Cecchi, Stewart & Olstein in Roseland, N.J. Following his admission to practice law in New Jersey, Dave worked as an attorney for Carroll, McNulty & Kull in Bedminster, N.J. He is admitted to practice law in New Jersey and is awaiting his admission to practice law in New York State.

Congratulations to Christian M. Perrucci, an associate in our litigation defense group, who won a settlement for an injured party that was 12 times the defendant's settlement offer. Realizing the paltry nature of the proposed settlement, Christian pursued the alternative of a trial and won a handsome sum for his client.