A Tale of Two Soldiers

Wondering how employers are coping with the loss of workers due to the deployment of military reservists? It’s never easy to lose valuable workers on extremely short notice, which is now happening all across the country as a number of reservists face imminent deployment or escalated training activity. Some employers appear to be coping better than others, however, as the stories of two reservists demonstrate. While certain employers are going above and beyond their legal obligations to actively assist reservists with the transition from civilian to military life, others seem to be resisting compliance with their relatively minimal legal obligations to accommodate reservists.

Albany, New York police officer Eric Woodard anxiously awaits his deployment as a member of the National Guard. However, for Woodard, being called up is less of a struggle than it is for many other reservists, as Woodard’s employer, the city of Albany, has pledged to cover the difference between his current civilian salary and his pay as a reservist. (See Employers Extend Help to Soldiers.) Woodard’s employer is one of several enlightened employers who realize that a reservist’s main focus should be on his or her military mission, rather than whether foreclosure or bankruptcy is about to be visited upon themselves and their families left behind. Some reservists find their salaries cut in half or more after entering full-time military service–a financial drain that is difficult to plan for, especially on relatively short notice.

Under USERRA, the Uniformed Services Employment and Reemployment Rights Act, employers are required to hold jobs for reservists and Guard members called to active duty, as well as count the period of military duty as service with the employer for benefit eligibility, vesting and accrual purposes. Activated reservists and their family members who need continued health insurance benefits are also covered by COBRA (the Consolidated Omnibus Budget Reconciliation Act) and HIPAA (the Health Insurance Portability and Accountability Act), which ensures that reservists and their family members do not lose health coverage while the reservist is away from his or her civilian job. Reservists and families who need additional information about their legal rights under USERRA and other applicable laws should contact Employer Support of the Guard and Reserve (ESGR) or the Department of Labor’s USERRA E-Laws Advisor for additional information.

Even under USERRA, however, employers are not required to pay workers who are away on military missions. An increasing number of employers do, however. ESGR publishes an “Outstanding Employers” honor roll to recognize those employers who provide more support for their reservist employees than the law requires. On the list are a number of major employers: American Express, Bank of America, ChevronTexaco, Coca-Cola, and Dell Computers, just to cite a few at the beginning of the long list. Admittedly, it’s easier for large employers like most on the list–they are more readily able to absorb the loss of personnel than is possible for a smaller business and less likely to suffer major economic losses when losing a relatively small number of employees. Some small businesses that are owned by or who employ reservists find it much more of a struggle to cope with the loss of a key employee, and may find it impossible to maintain the employee’s salary while also hiring temporary help to cover that person’s responsibilities. (See War’s Call on Workers is Stress on Businesses and Call-Ups Pinch Business.) Small businesses affected by military callups may be eligible for an economic injury disaster loan from the Small Business Administration (SBA). While the taxpayer-subsidized loans will not cover lost income or profits, they can help businesses that are having trouble covering necessary operating expenses after an essential employee is called to active duty. (See the SBA’s Reservists web guide for more information.)

What an employer shouldn’t do, however, is make life difficult and/or penalize employees with military obligations. Not only is that against the law, under USERRA, but may also prove to be a very unwise business decision, as Americans rush to embrace patriotism more than ever. The story of soldier # 2: Erik Balodis of Tucson recently filed a lawsuit claiming that his employer, auto parts retailer Pep Boys, fired him in June, due to his military commitments. After Balodis was fired, he claims his family of four was forced into bankruptcy and lost their home as a result. (See USA Today article.) Balodis’ lawsuit claims that Pep Boys made repeated requests to the Navy Reserve to exempt Balodis from service and training obligations, and that he was fired after attending a drill exercise. (Pep Boys also loses additional patriotism points for writing a letter dated September 11, 2001 to Navy officials asking that Balodis not be called up.) To be fair, Balodis’ claims have not yet been proven at this initial stage in his lawsuit. Pep Boys denies the allegations and is vigorously contesting Balodis’ claims that military-based discrimination caused him to be terminated.

Whether or not Balodis ultimately prevails, the allegations he makes in his lawsuit provide a textbook example of how employers should not respond to the needs of their reservist employees, regardless of any business hardship. Smart employers during this difficult time are doing everything they can to assist their employees in responding to the war effort; those who don’t not only subject themselves to lawsuits, but a great deal of negative public opinion.

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Madeline Messa

Madeline Messa se yon 3L nan Syracuse University College of Law. Li gradye nan Eta Penn ak yon diplòm nan jounalis. Avèk rechèch legal li ak ekri pou San Patipri Travay, li fè efò yo ekipe moun ki gen enfòmasyon yo bezwen yo dwe pwòp defansè yo pi byen.