USERRA Provides Reemployment Rights

When uniformed troops began their journey to such places as Afghanistan and Iraq after 9/11, the Armed Forces also took many reserved military personnel from their families, homes and civilian jobs to serve a tour of duty. This brought a need to clarify a law that was enacted in 1994 known as USERRA (Uniformed Services Employment and Reemployment Rights Act).

USERRA protects the rights of persons who voluntarily or involuntarily leave employment positions for duty in the uniformed services. The Final Regulations, which went into effect on January 18, 2006, provide employers with direction on their responsibilities relating to returning soldiers in practically every area of employment, including preserving seniority, hiring, promotion, health care, pensions, other benefits and notice requirements.

This is the first in a series of articles reviewing these regulations and will examine reemployment rights and responsibilities.

A returning service member is eligible for reemployment if five criteria are met:

• Employee must have been in uniformed service during the absence from the employer
• Employer must have received advanced notice of the employee’s uniformed service, 30 days suggested
• Employee must have no more than five years of cumulative uniformed service away from the particular employer
• Employee must return to work or apply for reemployment within a timeframe that is dependent on the length of the leave, varying from as little as the next scheduled work shift (for leaves under 31 days) to two years (if hospitalization or convalescence is required)
• Employee must not have received a disqualifying discharge of other-than-honorable separation from service

The right to reemployment applies to all positions at an employer, including managerial and executive jobs. It does not apply to positions for a brief, nonrecurrent period with no reasonable expectation that employment would continue for a significant period.

In addition to reemployment rights, service personnel who return are entitled to the job position they would have had absent the military leave under the “escalator principle”. That position must permit an employee to:

• Step back into the position the employee would have occupied had the service person remained employed during the military leave, including escalation to a higher position
• Be entitled to any pay increases the employee would have earned absent the military leave

• If no escalation would have occurred, or the person is ineligible for an escalated position, reemployment would be to the position held prior to the military leave
• If the service period is more than 90 days and the prior position is no longer available, then reemployment would be of like seniority, status and pay unless the employee would have lost his/her job during the military leave (e.g., reduction in force)

In addition, any service member’s disability incurred during military service does not hinder the right to reinstatement at the same seniority, status and pay. The employer must make a reasonable effort to accommodate a disability if it limits the service members’ ability to perform the job.

Service personnel returning to civilian jobs also have termination protection. An employer is unable to terminate employment upon return unless for cause for 180 days if military leave was 6 months or less, or for a year when the leave was for more than 6 months. Discharge for cause is not limited to discharge based on the employee’s conduct. Discharge because of job elimination and layoff for legitimate, nondiscriminatory reasons also constitute discharges for cause.

Additionally, the service member does not have to provide the employer with the intent to seek reemployment before commencing service. Even if the employee tells the employer prior to entering or completing service it does not forfeit the right to reemployment.

This edition merely addressed the tip of the USERRA iceberg. Watch for the next edition to review employers’ obligations related to health care continuation for military personnel called to active duty.

With regards to health plan coverage continuation, the Veterans’ Employment and Training Service (VETS), which administers USERRA, stressed the need for employers to develop “reasonable procedures.” For a comprehensive review of USERRA, consider joining our webinar titled, “A Call to Duty,” on Wednesday, February 15, 2006, 1:30 – 2:45 PM, EDT. This session will provide employers and agents/brokers with information to assist with compliance with these regulations, including a “reasonable procedures” document. Please contact our Seminar Department at 800-300-3838 for further details or visit our website to register.

The regulations are available on the Infinisource website under USERRA. Employers may also obtain detailed information about USERRA by calling 1-866-4-USA-DOL or by visiting www.dol.gov/vets/programs/userra/.

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