Employees Returning from Military Service

New Labor Ruling applicable to employees returning from military service:

Employers must credit National Guard and reservists active duty time towards their eligibility for leave under the Family and Medical Leave Act. Contractors should know that the Department of Labor (“DOL”) recently issued a memorandum that clarifies its position on the rights of returning uniformed service members to family and medical leave, which is governed by the Uniformed Services Employment and Reemployment Rights Act (“USERRA”). USERRA entitles returning service members to all the benefits of employment that they “would have” obtained if they had been continuously employed.

Under ordinary circumstances, a worker becomes eligible for leave under the FMLA after working for a covered employer for at least 12 months, during which he or she completed at least 1,250 hours of work. The DOL has interpreted the protections afforded by USERRA and FMLA together to require employers to count the months and hours that reservists or National Guard members would have worked had they not been called up for military service, when determining the employee’s FMLA eligibility. Thus, the months and hours that the employee would have worked, but for his or her military service, should be combined with the months employed and the hours actually worked to meet the 12-months and the 1250 hours of employment required by the FMLA.

The bottom line is that contractors may hire individuals who are called to active duty within weeks of their hire date and return from active duty eligible for FMLA protected leave from their civilian jobs.

For more information on this subject or other employment law matters, please contact Nicole Windsor at 410-583-2400 or windsor@bowie-jensen.com.