Florida's military affairs law (Section 250.482) protects the reemployment rights of National Guard members returning from state active duty. The law has been amended, effective July 1, 2009, to provide greater protection to National Guard members by, among other things, prohibiting an employer from discharging a returning member for the one-year period following the date the member returns to work, except for cause. At the same time, however, the amended law provides certain exceptions under which employers are not required to allow such members to return to work.
Florida employers should be aware that Section 250.482 applies where the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) does not apply. This client alert reviews employers' obligations under USERRA, and under the amended Florida law.
USERRA is intended to minimize the disadvantages to an individual that occur when that person needs to be absent from his or her civilian employment to serve in this country's uniformed services. The Act applies to persons who perform duty, voluntarily or involuntarily, in the "uniformed services," which include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services. USERRA applies to virtually all U.S. employers, regardless of size.
USERRA does not apply to "state" military duty or governor call-ups of National Guard members. USERRA would not apply, for example, to state call-ups of the National Guard for disaster relief, riots, or the like.
USERRA, which was signed into law on October 13, 1994, clarifies and strengthens the Veterans' Reemployment Rights (VRR) Statute. The Act itself can be found in the United States Code at Chapter 43, Part III, Title 38.
Under USERRA, an employer must, subject to certain exceptions discussed below, reemploy service members returning from a period of service in the uniformed services if those service members meet the following criteria: (1) the person must have held a civilian job; (2) the person must have given notice to the employer that he or she was leaving the job for service in the uniformed services, unless giving notice was precluded by military necessity or otherwise impossible or unreasonable; (3) the cumulative period of service must not have exceeded five years; (4) the person must not have been released from service under dishonorable or other punitive conditions; and (5) the person must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment.
The exceptions to the criteria above are provided in Section 4312(d). That section provides that if the employer's circumstances have so changed as to make such reemployment impossible or unreasonable, or where such reemployment would impose an undue hardship on the employer, the employer is not required to reemploy a returning service member. In addition, if the employment from which the person leaves to serve in the uniformed services is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period, the employer is also not required to reemploy the returning member.
Florida's military affairs law (Section 250.482) applies to both private and public employers. As previously stated, Section 250.482 applies to National Guard members returning from "state active duty." Section 250.01(21) defines "state active duty" as follows:
[F]ull-time duty in active military service of the State of Florida when ordered by the Governor or Adjutant General in accordance with s. 250.06, s. 250.10, or s. 250.28 to preserve the public peace, execute the laws of the state, suppress insurrection, repel invasion, enhance security and respond to terrorist threats or attacks, respond to an emergency as defined in s. 252.34 or to imminent danger of an emergency, enforce the law, carry out counter-drug operations, provide training, provide for the security of the rights or lives of the public, protect property, or conduct ceremonies. The term includes the duties of officers or enlisted personnel who are employed under the order of the Governor in recruiting; making tours of instruction; inspecting troops, armories, storehouses, campsites, rifle ranges, or military property; sitting on general or special courts-martial, boards of examination, courts of inquiry, or boards of officers; or making or assisting in physical examinations.
The amended law requires a National Guard member, upon the completion of state active duty, to notify the employer of his or her intention to return to work.
Pursuant to the amended law, the returning National Guard member is now entitled to:
- The seniority that the member had at his or her place of employment on the date of the commencement of his or her state active duty and any other rights and benefits that inure to the member as a result of such seniority; and
- Any additional seniority that the member would have attained at his or her place of employment if he or she had remained continuously employed and the rights and benefits that inure to the member as a result of such seniority.
Also pursuant to the amended law, an employer may not require the returning member to use vacation, annual, compensatory, or similar leave for the period during which he or she was ordered into state active duty. However, the returning member, upon his or her request, must be permitted to use, for the period during which the member was ordered into state active duty, any vacation, annual, compensatory, or similar leave with pay accrued by the member prior to the commencement of his or her state active duty service.
While the above additions provide greater protection to National Guard members returning from state active duty, the amended law also provides the following exceptions under which employers are not required to allow such members to return to work:
- The employer's circumstances have so changed as to make employment impossible or unreasonable;
- Employment would impose an undue hardship on the employer;
- The employment from which the member of the National Guard leaves to serve in state active duty is for a brief, nonrecurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period; or
- The employer had legally sufficient cause to terminate the member of the National Guard at the time he or she left for state active duty.
§ 250.482 (2)(b). These "exceptions" are similar to those found in the federal law at Section 4312(d).
Finally, the amended law provides that a person found in violation of the protections provided under the law may be liable for a civil penalty of up to $1,000 per violation.
As demonstrated above, the amended law changes the reemployment rights of National Guard members returning from state active duty. The effect of these changes, however, is limited by the fact that Section 250.482 applies only to National Guard members returning from "state active duty," as defined above. While employers will not likely see a large influx of employees seeking reinstatement in the immediate future, employers should be aware of the changes as we enter the 2009 hurricane season, and the possibility of a governor call-up of National Guard members increases.
To read the full text of the amended law, please visit: