OCTOBER 2001

The events of September 11, 2001 shocked, saddened, and angered all of us. Following the tragedy, employers may have questions arising from the terrorist attack. The purpose of this employment law update is to cover come of those employment law issues.

Military Duty

In general, a California employer has two separate laws to consider – one state, one federal – when an employee is called to active military duty. On the state side, there is the Military and Veterans Code. Federally, there is the Employment and Re-employment Rights of the Members of the Uniform Services Act of 1994. California law provides that an employer may not "discharge, refuse to hire, or otherwise discriminate against" a person because of military service. The law also entitles the employee to an unpaid leave of absence not to exceed 17 days for training or active duty.

The federal law is more complicated. It, too, prohibits discrimination against persons who serve in the armed forces. This prohibition applies not only to tangible job loss, but also to wages or salary, health plans, stock ownership plans, pension or retirement plans, insurance coverage, bonuses, and vacations.

The federal law also has specific reinstatement provisions. These provide that if the employee's military service lasts less than 31 days, the employer must re-employ the employee if he or she requests reinstatement by the beginning of the first regularly scheduled work week following the employee's release from military duty. Where an employee's military service lasts for more than 31 days but less than 181 days, that "reporting back" period is extended to not later than 14 days after the military service concludes; if the employee's military service lasts for 181 days or more, the employee has up to 90 days after completion of his or her military service to report back to his or her employer. Employers need not reinstate an employee if circumstances have changed so dramatically that re-employment would be impossible or unreasonable, but that standard is very difficult to meet.

Bereavement Leave

There are no federal or state laws requiring employers to provide bereavement, funeral, or similar leave. Providing such leave is entirely a matter of company policy. If no bereavement leave policy is in place, a company may allow employees to take time off as sick, vacation, or unpaid leave.

If you would like to discuss these or any other employment law matters, please do not hesitate to contact any member of Klinedinst's Employment Law Department.