Air Force Memorial in Arlington, VA
Air Force Memorial in Arlington, VA

UPDATED

Continuing to recap various employment law bills out of the Connecticut General Assembly, the legislature passed a measure Wednesday night that brings Connecticut’s FMLA law more in line with the federal counterpart.

The federal FMLA was amended back in 2008 (prior post on the subject here) to provide coverage for any “qualifying exigency” arising out of the fact that the spouse, son or daughter, or parent of the employee is on active duty or has been notified of an impending call to order in the armed forces.  Regulations were put in place as well.

The new Connecticut rule — which will go into effect immediately upon the Governor’s signature — covers that same type of qualifying exigency. Indeed, it defines such an exigency by reference to the U.S. Department of Labor’s regulations on that very subject.

What this means is that employees in Connecticut will now have 16 weeks over a 24 month period for such a leave.  You can review Senate Bill 262 here.

The new rule, however, is not a mirror image of the federal counterpart but brings its nearly up to date with it. And as readers will recall, there is a 26 week period for caregiver leave also in place in Connecticut as a result of P.A. 09-70 back in 2009.

Ultimately, employers in Connecticut will have to update their FMLA policies and procedures to account for this leave, if you haven’t been allowing military leaves under CTFMLA.

And while it’s obviously important to support the military and those that serve — the confusing and overlapping laws on the subject don’t make it easy for employers who want to do right by their employees.

USERRA (quick, name that acronym, answer down below) is a oft-misunderstood federal statute that addresses employment issues for reservists and active duty members of the armed forces.

Understanding USERRA

A recent Second Circuit decision (Hart v. Family Dental Group, decided May 31, 2011), arising from a federal court filing in Connecticut demonstrates the difficulties employers may have in understanding the provisions.

For example, one of the USERRA provisions provides substantial protection to returning reservists.  First, the employee — upon return — must be treated as if he or she never left.  In addition, when an employee returns from his or her military obligations, the employer cannot fire that person for 180 days without cause.

In Hart, the employer gave the employee just 60 days notice when the employee returned, which later changed to 30 days. After a complaint was filed with the Department of Labor, the employer agreed to keep the employee on for 180 days.  But after 180 days, the employee was terminated.

The Second Circuit found that the employer did all that it was required and that USERRA did not offer additional protection.

I’ve previously discussed USERRA at length in prior posts and for employers who have employees in this situation, this case is a reminder that the details of USERRA are worth reviewing.

And what does USERRA stand for? Uniformed Services Employment and Reemployment Rights Act. But you already knew that, right?

 

One USERRA provision is quite generous to reservists: upon the employee’s return from his military obligations, the employer cannot fire him for 180 days without cause.

Earlier this afternoon, President Obama signed the National Defense Authorization Act of 2010.  By doing so, he approved of several changes to the FMLA .  But before you rip up your existing FMLA policies, the provisions relate to the military-related leaves under the Act.  (H/T Ohio Employer’s Law Blog)  The changes as a whole expand the coverage and the availability of military family leave. 

Carl Bosland at the FMLA Blog summarizes the details:

  • Eligible employees will be able to take military caregiver leave for veterans who served in the regular Armed Forces, the Reserves within 5 years of the date the veterans undergoes medical treatment, recuperation, or therapy.  Currently, military caregiver leave is only available to care for current members of the Armed Forces, Guard, or Reserves.
  • Military caregiver leave is expanded to cover aggravation of existing or preexisting injuries incurred in the line of duty while on active duty. 
  • Qualifying exigency leave is expanded to cover members of the regular Armed Forces who are deployed to a foreign country.  Currently, qualifying exigency leave is only available for covered military members in the Reserves or Guard.

But of course, in Connecticut, this will only create another set of headaches. Connecticut just amended the state FMLA rules to be more consistent with the federal rules as they relate to military caregiver leave.  These new rules now create a significant difference between the state and federal rules.

Nevertheless, where the FMLA and the state FMLA conflict, employers in Connecticut must implement the more favorable of rules. Therefore, employers subject to FMLA in Connecticut

Nine months after a jury found his employer liable for firing a reservist called to active duty after the 9/11 attacks, a federal judge awarded Michael Serricchio over $1.3M in damages on his federal claim in a decision handed down late last week.

It is believed to be the largest judgment ever awarded under The Uniformed Services Employment and Reemployment Rights Act (USERRA), a federal law that protects service members’ reemployment rights when returning from a period of service in the uniformed services, including those called up from the reserves or National Guard, and prohibits employer discrimination based on military service or obligation.

You can read the court’s decision here.  The court’s judgment is available here and also includes an order of reinstatement. 

The Hartford Courant had a lengthy piece over the weekend spelling out the reaction to the court’s decision including much of its background.

While the amount of the court’s judgment is significant, the outcome wasn’t that unexpected after a jury decided the issue of liability last summary. The federal court only had to decide what, if any damages, it would award.   Before the court held the bench trial on damages, it afforded each party the opportunity to submit trial briefs on the issue. You can view the employer’s brief here and the employee’s brief here. The court held a bench trial last fall on the issue of damages and issued its decision late last week.

For employers, USERRA is one of the least-understood federal employment laws. Back in 2007, I discussed it at length. The Department of Labor also has an extensive website on the subject.  For employers with reservists or those called to active duty, understanding USERRA is crucial to avoiding expensive and time-consuming claims under that law.