An employer’s chance to serve via the Uniformed Services Employment and Reemployment Rights Act (USERRA)
by Jim Evans
It’s Memorial Day weekend. On Monday, many businesses will close so employees can celebrate the holiday with family and friends, and commemorate our military men and women who serve, or have served our country.
This holiday takes on particular significance as troops are deployed throughout the world, and continue to fight and die in Iraq. Military personnel is not just friends, neighbors, and relatives. They’re also employees. As employees are called to duty, employers have an opportunity to serve their country, in a unique way, by following not only the letter but the spirit of the Uniformed Services Employment and Reemployment Rights Act (USERRA).
The law was enacted in 1994, in part to address reemployment problems experienced by veterans returning from the Gulf War. It was amended in 2004. It’s the latest in a series of federal laws that prohibit discrimination against persons who voluntarily or involuntarily serve, or have served in the United States uniformed services. It provides protection in employment, job retention, advancement, and benefits of employment. DOL regulations help employers interpret the Act…
USERRA applies to virtually all employers, both public and private, regardless of size. In general, employees may take protected military leave for up to five years, with rights of reemployment. The five-year protected leave maximum may be extended in certain circumstances. Employees must follow leave and reemployment notification requirements, but employers can’t mandate that employee state intention to return to work following the military obligation, as a condition for granting leave.
Employees serving less than 90 days must be reemployed to a position that he or she would have attained if continually employed. For leaves more than 90 days, a position of like seniority, status and pay must be offered. If not qualified for the job, the employee must be reemployed to a lesser position for which the employee is qualified, with full seniority. There are only a few narrow circumstances where an employer does not have to reemploy.
Employers are not required to pay employees on military leave, even for short-term call-ups. However, some employers voluntarily pay equal to the difference between the employee’s military pay and base salary. An employer may not require an employee to use vacation for short-term military training, however, the employee may voluntarily use it.
Continuation of medical leave coverage must be offered to the employee and dependents for up to 24 months, following 30 days of military leave, but coverage is at the employee’s expense. The employer can tack on a 2 percent administrative fee. During the first 31 days of leave, medical coverage continues, and employees can’t be required to pay more for the insurance than what they would have paid if employment hadn’t been interrupted. Upon reemployment, the employee and dependents have right to reenter the plan, regardless of whether the employee elected to continue coverage during the leave.
Seniority is also protected, so military leave does not constitute a break in employment. Across-the-board increases, improvements to insurance, vacation leave accrual rates, and all other rights and benefits that the employee would have derived from uninterrupted employment must be given. Likewise, the employee may use any benefits, such as vacation leave and sick leave that was on the books prior to going on leave. Retirement plans are protected also. Employees automatically qualify without waiting periods, don’t lose vesting, and the employer must make contributions that would have otherwise been made.
Employees who take military leave for more than 30 days may be discharged, but only for cause during a specified time period following return from leave, with the time period set by the duration of military service. Job applicants are also protected. An employer may not reject a candidate, or withdraw an offer of employment if the employee is in military service, or is anticipated to need military leave.
This is just a quick snapshot of USERRA, not a comprehensive analysis. The regulations are lengthy and cover many more military leave rights and obligations. For more information, refer to the DOL Web site at www.dol.gov and contact your employment counsel.
Employers don’t often embrace governmental interference in managing their businesses. Holding a job for long periods and providing protections for military service personnel can be a sacrifice for both employers and coworkers. However, putting things in perspective, this sacrifice pales in comparison with the burdens and sacrifice faced by our military servicemen and women.