G. Thomas Harper
Labor and Employment Committee members will discuss the new protections afforded returning National Guard members under Florida’s amendments to the Military Affairs law. These amendments became effective in July 2009 and protect members of the National Guard who are returning from active duty service.
The Florida Military Affairs Law, Section 250.482, fills in the gaps left by the federal Uniformed Service Employment and Reemployment Rights Act of 1994 (“USERRA”). USERRA provides that returning service members are to be re-employed in the job that they would have attained, had they not been absent for military service, with the same seniority, status and pay, as well as other rights and benefits determined by seniority. There are certain exceptions to this requirement if the employer’s circumstances have changed so that re-employment is impossible, unreasonable, or would impose undue hardship on the employer. The federal law, however, does not apply to state military duty or state call-ups of the National Guard.
Florida Military Affairs Law and amendments
Section 250.482 of the Florida Military Affairs Law requires that troops ordered into active state service not be penalized by employers (or post secondary institutions). It applies to both private and public employers. Troops returning from active service are required to promptly notify their employer of the individual’s intent to return to work. The amendments to the law now entitle the employee returning from active service to:
1. 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
2. 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.
In addition, an employer is not allowed to require an individual returning from active duty to use vacation, annual, compensatory, or similar leaves of absence for the period during which the member was ordered into active duty. However the employee may elect to do so.
The amendments also provide employers with four exceptions to the reinstatement requirement:
1. The employer’s circumstances have so changed as to make employment impossible or unreasonable;
2. Employment would impose an undue hardship on the employer;
3. The employment from which the member of the National Guard leaves to serve in state active duty is for a brief, non-recurrent period and there is no reasonable expectation that such employment will continue indefinitely or for a significant period; or
4. 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.
However, the statute specifically puts the burden on the employer to show that one of these four exceptions exists. Also, the law is specific to only those members returning from “active duty” which is defined by the law.
Important new rights to protect returning Guard Members
The new law provides that a member of the National Guard who returns to work after serving on state active duty may not be discharged from employment for a period of one year after the date the member returns to work, except for cause. This new language appears to give a National Guard member the right to have a court determine whether the employer’s “cause” was sufficient to justify their termination. The new law also provides that a prevailing party in any litigation is entitled to recover reasonable attorneys’ fees and court costs.
The new amendments also add additional penalties to any other relief or penalties provided by Florida or federal law. The amendments provide that a person is liable for a civil penalty of not more than $1,000 per violation if that person violates the provisions of Florida’s Military Affairs Law.
Bottom line
The amendments to the Florida Military Affairs Law bring it in line with many of the requirements of USERRA. The law extends the USERRA type protections to troops who are called up for active duty in the service of the state. When faced with an employee seeking to return to their job after an absence due to military service, both employers and attorneys should be aware that the service members may be protected by both federal and state laws
The Labor and Employment Law Section of the Jacksonville Bar Association will meet at the Southern Grill for lunch on Thursday. Members will have a discussion on “The Change We’ve Been Dealt,” thus far by the Obama administration. Some of the new and imminent labor and employment laws that will be discussed will include:
New ADA regulations, Lilly Ledbetter Fair Pay Act of 2009, Paycheck Fairness Act of 2009, executive compensation, new military leave components of FMLA, The Employee Free Choice Act, Florida and federal minimum wage, The New Age Discrimination Analysis & Congress’ Answer, OSHA’s ambitious inspection plans, arbitrating employment claims given boost by U.S. Supreme Court, an aggressive OFCCP, H1N1 policies for the workplace, federal contractors and E-Verify and new Florida protection for members of the Florida National Guard.
Committee Chair Tom Harper is “av” rated by Martindale Hubble and has over 30 years of labor relations and employment law experience. Harper is a certified civil mediator and Board Certified in Labor and Employment law. He is also an approved, court appointed arbitrator in the Second, Seventh, Eighth, 13th, and 17th Judicial Circuits of Florida.