Employees absent from work due to being called to duty by the U.S. military will retain
the right to vote in both divided vote referendums and majority vote referendums as
long as an employee/employer relationship continues to exist. For the purpose of determining
whether an employment relationship exists (for the purpose
of identifying participants for a referendum), refer to the Uniformed Services Employment and Reemployment Rights Act of 1994
(USERRA). USERRA is a federal law that gives members and former members of the U.S.
armed forces the right to go back to a civilian job they held before military service.
USERRA also assures service members called to duty the same rights and privileges
that they would otherwise be entitled to if they were on leave of absence or furlough.
USERRA, § 4316 Rights, benefits, and obligations
of persons absent from employment for service in a uniformed service states that a person who is absent from a position of employment by reason of service
in the uniformed services shall be— deemed to be on furlough or leave of absence while
performing such service; and entitled to such other rights and benefits not determined
by seniority as are generally provided by the employer of the person to employees
having similar seniority, status, and pay who are on furlough or leave of absence
under a contract, agreement, policy, practice, or plan in effect at the commencement
of such service or established while such person performs such service. § 4316 (3),
a person deemed to be on furlough or leave of absence under this subsection while
serving in the uniformed services shall not be entitled under this subsection to any
benefits to which the person would not otherwise be entitled if the person had remained
continuously employed; and (4) such person may be required to pay the employee cost,
if any, of any funded benefit continued. USERRA further states that a person who
knowingly provides written notice of intent not to return to a position of employment
after service, is not entitled to the above mentioned rights.
To be qualified under USERRA protection a person must meet five tests. However, for
the purpose of participating in a referendum for employees called to active duty it
is only necessary that a person meet the first three tests. The last two tests imply
the person is no longer deployed. The 60 day exception only applies to eligible employees
who are on active duty at the time the notice is sent and at the time the referendum
Job. Must have left the job for the purpose of performing service in the uniformed services.
38 U.S.C. 4312(a).
Notice. Must have given prior oral or written notice to the civilian employer. 38 U.S.C.
4312(a)(1) Prior notice is not required if it is precluded by military necessity or
otherwise impossible or unreasonable. 38 U.S.C. 4312(b).
Duration. Cumulative period or periods of service in the uniformed services, relating to that
particular civilian employer, must not have exceeded the five-year limit. All involuntary
service and some voluntary service are exempted from the five-year limit. 38 U.S.C.
Character of service. Must have been released from the period of service, without having been “dropped
from the rolls” or having received a punitive or other-than-honorable discharge. 38
Prompt return to work. Must have reported back to work in a timely manner, or have submitted a timely application
for reemployment. 38 U.S.C. 4312(e)(1).