TN 1 (07-05)

Circumstances exist when the conventional conditions of administering a majority vote and a divided vote referendum do not apply. Therefore, special provisions have been made for eligible employees of a retirement system who are called to duty for military purposes, thus ensuring them an equal opportunity to participate in the referendum process.

A. DEPLOYED MILITARY PERSONNEL

1. General

If a member of the military who has been called to duty is maintaining an employee/employer relationship with a non-military employer at the time the notice of referendum is given and at the time the referendum is held, then, despite their absence, they will be given the opportunity to vote.

Due to the unique circumstances experienced by military personnel who are called to duty, especially during times of war or other similar conflict, exceptions regarding military personnel who are called to duty and the 90 day advance notice of referendum will be made. Military personnel called to duty prior to the day the state administrator, or the individual delegated the authority to issue advance notice mails, delivers, posts, or by whatever means issues the 90 day advance notice of referendum will be allowed an additional 60 days to receive the notice before the referendum can be held. The 60 day extension will be in excess of the original 90 day advance notice of referendum and will apply to all eligible members of the retirement system. While conditions which are outside of the deployed employee's control make it necessary to provide the additional 60 day extension, insuring equal opportunity for participation by all stakeholders, it would not be to the benefit of non-military eligible employees to delay the referendum for a period of time greater than 60 additional days.

Federal law requires that certain minimum conditions be met when conducting a referendum. Section 218(d)(3) lists the Federal requirements for a majority vote referendum while Section 218(d)(7) lists the Federal requirements for a divided vote referendum. All other responsibilities impacting referenda are given to the State. However, it is suggested that the advance notification be accompanied with language that informs all eligible members the reasons why the 90 day advance notification is extended an additional 60 days. Also, a ballot should be included with the advance notice of referendum. This will reduce the likelihood of having additional delays once the voting process begins. The ballot should be returned no later than the cessation of the 60 day extension. Any ballot received after the 60 day extension will be accepted, provided the votes of all other eligible employees of the retirement system have not been tallied. State Administrators or the official delegated authority to conduct referenda are encouraged to retain or document correspondence with the retirement system and/or the employers when inquiring whether any eligible members have been called to duty.

2. Employees Eligible to Vote

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 is held.

• 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. 4312(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 U.S.C. 4304.

• 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).

3. How to Include Called to Duty Military Personnel in a Referendum

It is suggested that referendum material be mailed to the last known address. This would most likely be the address that the employer has in their file. Additionally, if the military address is known, a notice of referendum should also be mailed to the military address. According to the Military Postal Service Agency priority mail will take 10 to 15 days while surface/air mail will normally take about 24 days.

The Department of Defense has also issued guidelines for addressing mail to military and civilian personnel deployed overseas: Use the service members full name; include the unit and APO/FPO (Air/Army Post Office or Fleet Post Office) address with the nine digit zip code; and include a return address. For packages, print on one side only.

Examples:

SSGT Kevin Taylor
Unit 2050 Box 4190
APO AP 96278-2050

SGT Robert Smith
PSC 802 Box 74
APO AE 09499-0074

Seaman Joseph Doe
USCGC Hamilton
FPO AP 96667-3931

State administrators are encouraged to associate detailed contact information with the notice of the referendum. This would include the respective state administrators’ address, telephone number, and e-mail address if available. Also, it is advised that copies of all correspondence sent to deployed military be retained by the state administrators. If states delegate the referendum process to local entities, they should be included. This will insure accurate accounting of the 90 + 60 day advance notice period.

4. Scenarios

Consider the following scenarios pertaining to employees called to duty for military purposes who maintained an employee/employer relationship under USERRRA to determine how to handle your situation:

• If the 90 day advance notice of the referendum (Federal law does not prescribe the form of notice) is issued on January 1^st and it is determined prior to 12:00 A.M. January 1^st that an eligible member(s) of the coverage group is deployed and has maintained under USERRA intent to return to employment then the 90 day notice will be extended from March 31^st to May 30^th for all participants. Therefore, the referendum may be held any time on or after May 31^st. Federal law allows states to conduct voting for purposes of holding a referendum by whatever means they prescribe as long as the conditions within 218(d)(3) and 218(d)(7) are met.

     

• Employees who are called to duty for military purposes are often unaware of the amount of time that they will be detailed. In many instances their departure could be days, weeks, months, or years. If the 90 day advance notice is sent at any point during the absence of any eligible employee of the retirement system due to being called to duty then the additional 60 days must be given to all eligible employees. The extension can not be retracted once issued. In certain infrequent situations reservist or guard members may be activated to participate in short duration events not related to the event of war or other national emergency, in which case it is left to the State’s discretion whether they choose to activate the 60 day extension.

     

• Divided vote referendum

  Called to duty employees who failed to respond to the notice of a divided vote referendum will be given the opportunity to vote upon their return to employment, if an employee/employer relationship was maintained under USERRA. This applies to any divided vote referendum in which the outcome by the other eligible members was either “yes” or “no” to coverage. Called to duty employees will be given a second chance procedure to obtain coverage, indicated in SL 30001.335, as in the case of a present member who votes “NO” in a divided vote referendum. Under these procedures, the individual must file written request for Social Security coverage with the State prior to the execution of the modification providing such coverage. Coverage can be extended under the procedure described in SL 30001.335(A) to these employees on the date designated in the modification to control who will be retroactively covered under the modification, i.e., the Section 218 (e)(2) date.

     

• Majority vote referendum

  If a majority vote referendum for Social Security and (HI) Medicare coverage is held in the absence of a called to duty employee and the outcome was “NO,” a new referendum held among the employees of the same retirement system can be conducted immediately upon the one year anniversary of the unfavorable referendum, thus limiting the amount of time that deployed members who have returned must wait. A group that held an unsuccessful referendum for full coverage can hold a Medicare only Referendum immediately upon the return of all deployed employees, if they choose to do so. The 1-year time limitation between referendums in section 218(d)(3) of the Act applies only to a referendum for the same type of coverage for the same retirement system.

     

  If a majority vote referendum is held in the absence of a called to duty employee and the outcome was “YES,” the stated individual will automatically be covered under the agreement upon his/her return to employment. No subsequent referendums will be held.  The ramifications of terminating coverage to a retirement system group would be a detriment to its members and to the employer.