When Johnny comes marching home

January 1, 2003 By    

Given the current world situation, more and more military service personnel are leaving their jobs to serve our country. All employers need to be aware that they are subject to the Uniformed Services Employment and Reemployment Rights Act.

Under USERRA, employees who leave their jobs to enter military service are guaranteed reemployment rights and other pay and job protections. The Act requires employers to give leave to employees who serve in the armed forces, various reserve units, or the National Guard, once they receive orders to report for duty. Upon completion of their military service, they
are entitled to be restored to their former positions with full seniority, or to a position offering the same pay rate and seniority.

Additionally, those employees returning to work must be given any general increases, length-of-service, or cost-of-living pay hikes that they would have received had they never left. The law also prohibits employers from discharging or denying promotions or other benefits to employees due to their military service.

In order for a returning employee to be entitled to legal protection under USERRA, they must meet certain conditions.

First, the employee must have given advance written or verbal notification to his or her employer.

Second, the cumulative length of absence from employment due to military service cannot exceed five years. There are provisions for when an extension of the five-year period can occur, however.

Third, the employee must have been honorably discharged from military service.

Finally, employees must apply for reemployment within the appropriate time limits specified in the statute.

The law provides that any person who submits an application for reemployment shall provide the employer with documentation to establish that the person’s application is timely; that the person has not exceeded the service limitations set forth, and that the person is entitled to benefits under the Act and has not been dishonorably discharged from military service.

Employees are also protected from discharge after reemployment following military service. A returning employee who served 30 to 181 days cannot be discharged for at least six months upon their returning to work. If service was 181 days or more, an employee may not be discharged for at least one year. An employer who can show that discharge was for cause, however, may fire the employee without being held in violation of the law.

USERRA requires employers to offer employees on military leave ­ and their dependents ­ continuing health plan coverage. It also provides that pension plan vesting must continue during military service as though the employee had never left his or her employment.

Specifically, USERRA requires employers to not to consider that there has been a break in employment. There can be no forfeitures of benefits that have already accrued, and there can be no requirement to re-qualify for participation in the pension plan. Employers should also note that any contributions that they would have made to the employee’s pensions, had the employee not been absent for military service, must be made.

The U.S. Secretary of Labor is charged with assisting returning employees who have served in the uniformed services in obtaining the rights and benefits when they are denied by their employers. The Secretary’s duty is to conduct an investigation of each claim and to make efforts to obtain voluntary compliance from the employers found to be in violation.

If the case proceeds to litigation and the service member is successful in his or her suit, a court may award the following damages:

A service member who has retained private legal counsel could be awarded reasonable attorney fees, expert witness fees, and any other litigation expenses that were incurred to bring the suit. Employers can be ordered to comply with the provisions of USERRA, ordered to compensate the employee for any lost wages and benefits, and made to pay liquidated damages in the case of a willful violation.

There are a couple of exceptions to reemployment rights under the Act. The employer need not reemploy the person if the employer’s circumstances have so changed as to make it “impossible or unreasonable” to do so. Additionally, if it would create an “undue hardship” on the employer, reemployment would not be required.

As an employer, you should be aware that these exceptions are very limited.

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