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Beyond USERRA: the laws governing Louisiana employers

Employers should keep in mind that USERRA provides a federal "floor," rather than a "ceiling" on benefits and entitlements. That means that state legislatures may enact additional protection for uniformed service members, and some states have done just that, including Louisiana. Several states, such as California and Louisiana, have passed laws providing for such things as additional vacation accrual and benefits continuation.

"Louisiana has its own laws that overlap and, in some instances, provide greater protections than those afforded by federal law," notes Jones Walker partner Jennifer Anderson, who specializes in labor and employment law and volunteers as an ombudsman for the Employer Support for the Guard and Reserve committee (ESGR).

"Louisiana's Military Service Relief Act (MSRA) was enacted to supplement the rights that persons called to military service have under federal statutes, including USERRA," Anderson says. "In 2001, Attorney General Richard leyoub rendered an opinion that explained some of the more important differences between Louisiana's protections and those provided by federal law."

In addition to the MSRA, La. R.S. 29:38 and 29:38.1 specifically govern the issue of discrimination against and reemployment rights of service members.

Here's how Louisiana law exceeds the protections afforded by federal law, according to the statutes and the attorney general's opinion:

* The MSRA allows service members to continue making their employee contributions to qualified retirement plans while on active duty, whereas the USERRA only provides for a retroactive contribution upon the service member's return to his civilian job.

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* The MSRA requires employers to continue contributing to a service member's cash balance plan during active duty. USERRA only provides for retroactive contributions upon a service member's return to his civilian job.

* The MSRA permits service members to continue their participation in "any group life insurance, group insurance, family group, blanket and franchise health and accident insurance, and health care services plan" while on active duty. USERRA, on the other hand, addresses only continued participation in group health insurance.

* The attorney general opinion concludes that the MSRA, unlike the USERRA, allows civilian sick, annual, vacation, and military leave time to continue accruing while the service member is on active duty. The employer's policies and procedures for eligibility and accrual of such leave continue to apply.

* The MSRA prohibits an employer from discharging any service member who returns to work without cause for one year following his or her return. The USERRA provides this protection only if the employee's period of service lasted more than 180 days. USERRA provides protection from discharge without cause for 180 days after the service member returns to work if the period of service lasted between 31 and 180 days.

"Employers should also keep in mind that the Louisiana Department of Labor now has a new set of posters that employers are required to place in their workplaces, one of which specifically addresses service members' civilian employment rights," Anderson says.

According to Anderson, employers will soon have additional help in interpreting USERRA in the form of regulatory guidance on the statute that will be issued for the first time. The Department of Labor, in consultation with the Department of Defense, has developed a set of proposed regulations to provide additional guidance to employers and employees concerning the rights and obligations of both under USERRA.

"The courts have been looking at these rules and making interpretations, and we are now in the comment period on a set of proposed regulations which will be promulgated sometime after the comment period ends on Nov. 19."

Employers interested in viewing or downloading the Louisiana Department of Labor's state-mandated poster on service members' rights can find it on the Web at http://www.ldol.state.la.us/qm_onlineservices.asp.