Consortium Call of the Month

Category: Client Update
Date: Dec 3, 2018 06:51 PM

Members of Liebert Cassidy Whitmore’s employment relations consortiums may speak directly to an LCW attorney free of charge regarding questions that are not related to ongoing legal matters that LCW is handling for the agency, or that do not require in-depth research, document review, or written opinions.  Consortium call questions run the gamut of topics, from leaves of absence to employment applications, disciplinary concerns to disability accommodations, labor relations issues and more.  This feature describes an interesting consortium call and how the question was answered.  We will protect the confidentiality of client communications with LCW attorneys by changing or omitting details.

Issue:  An agency manager contacted LCW with a question regarding the Uniformed Services Employment and Reemployment Rights Act (“USERRA”), a federal law that ensures that employees are not adversely affected in their employment when they return to work after completing military service.  An employee of the agency took military leave for 60 days and, upon the employee’s return to work, requested to be reemployed.  The manager wished to know whether the agency may require an employee to provide certain documentation relating to the employee’s military leave when the employee requests reemployment.

Answer:  The attorney noted that USERRA standards relating to reemployment rights vary depending on the nature and duration of an employee’s military service.  If the employee’s period of military service exceeds 30 days, and if the employer requests the employee to provide documentation for reasons permitted by USERRA, the employee must provide the documentation.   However, the USERRA only permits requests for documentation to confirm that:  timeliness of the employee’s reemployment application; the employee has not exceeded the USERRA five-year limit on the duration of service (some exceptions apply); and the employee’s discharge from service does not disqualify the employee from USERRA protections.  An employer may not delay or deny reemployment by demanding documentation that is not readily available or does not exist.  An employer may not impose requirements, beyond USERRA’s requirements, that delay or deny reemployment. The attorney noted that while California’s Military and Veterans Code does not address documentation, state law also governs military leaves and reemployment rights.


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