Bench & Bar March/April 2025

disciplines other workers who are absent without leave or authorization for a similar period of time. Further, it is permissible for an employer to contact that service member’s military commander to explain the difficulties caused by the employee’s military service and to request changes to make that service less burdensome. However, the military is NOT required to agree to those requests.

This brief article should be enough to steer the practi tioner to the proper code in the event of encountering a military servicemember as a client.

ABOUT THE AUTHOR

As a proud vet eran of the United States Navy, NICK HETMAN is currently the Commander of the

James L. Yates Post 9 of the American Legion Owensboro, Ky. A graduate of the University of Tennessee School of Law in 1977, he served for 38 years as senior attorney for the interstate natural gas transmission companies of Texas Gas Transmission Corporation and South ern Star Central Gas Pipeline, both located in Owensboro. Following retirement in 2015, in 2016, he entered private practice with the firm of Stevenson & Tierney in Owensboro. WEBSITES REVIEWED FOR ASSISTANCE WITH PREPARING THE ARTICLE. 1. U.S. Department of Labor--Veterans Employ ment and Training Service--Your Rights: https://www.dol.gov/agencies/vets/programs/ userra 2. U.S. Office of Special Counsel--USERRA Over view: https://osc.gov/Services/Pages/USERRA. aspx 3. USERRA: https://www.law.cornell.edu/wex/us erra_(the_uniformed_services_employment_ and_reemployment_rights_act) 4. USERRA Law: https://www.servicememberlaw. com/userra-law 5. 38 U.S. Code Section 4311 6. Military Employment Rights: https://legalaidat work.org/

USE OF USERRA It is important to note that USERRA applies to both public AND private employees. In the event of a Complaint being filed, the Office of Special Counsel, in conjunction with the Department of Labor, Veterans Employment & Training Service, inves tigates and enforces USERRA claims involving federal government employers. As concerns private employers as well as state and local government, the Department of Labor and the Department of Justice handle such claims. USERRA APPLIES NOT ONLY TO RETURNING SERVICE MEMBERS, BUT TO THOSE WHO: a. Are not considered for a job because that service member may have a military obligation on the day he/she is to start work; b. Are not being considered for a job because some of that member’s Reserve duties conflict with the company’s normal working hours; c. Are not being considered for a In order to avail themselves of the rights provided by USERRA, the employee has certain obligations, one of which is to pro vide advance written or verbal notice of any upcoming military service obligation and to notify the employer of his/her intent to return to employment (time frames vary according to length of time of service), and to provide a DD 214, and orders to verify length and character of service. Upon receipt of such information, the employer must approve requests for absence due to military service (38 USC4316(d)) and place the employee on leave without pay status for the duration of the military service, unless the employee requests other job because the service member may be required to perform extended periods of military ser vice (deployment overseas).

types of paid leave in conjunction with the absence period. However, employers may not have to reemploy a service member under the following scenarios: 1. Changes in the employer’s cir cumstances make reemployment impossible (example: going out of business); 2. The original employment was only temporary at its inception; 3. The service member sustained an injury that would create an “undue hardship” on the employer (There must be reasonable effort made to accommodate that service member. There are, of course, certain accommodations that are impossible, unreasonable, or use a prohibitive amount of resources); 4. Unfavorable discharge; 5. The service member exceeded the cumulative five-year limit of total service (with certain exceptions).

19 bench & bar