Schaumburg, Ill.--Marines, Air Force, Navy, Army, and Coast Guard – United States reservists are currently being called to active duty by the tens of thousands. If any of these brave men or women work for you, it is imperative that you are familiar with federal and state laws regarding their employment status and benefit rights.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted in 1994 following the Gulf War to provide job, benefit, and reemployment protection for service members called into active duty. USERRA was revised in September 2004 with the "final rules" being issued in March 2005. Information available from the Department of Labor (DOL) indicates that "USERRA is intended to minimize the disadvantages to an individual that occur when that person needs to be absent from his or her civilian employment to serve in this country's uniformed services." Many states also have veterans' reemployment laws, and USERRA does not supersede any of these laws that establish rights or benefits that are more beneficial than the federal law.
Protections provided extend to the following areas.
Employment discrimination
Health plans
Reemployment benefits
As of March 10, 2005, employers must "provide to persons entitled to rights and benefits under USERRA a notice of the rights and benefits, and obligations of such persons and such employers under USERRA." Employers may provide the notice, "Your Rights Under USERRA," by posting it where employee notices are customarily placed. However, employers are free to provide the notice to employees in other ways that will minimize costs while ensuring that the full text of the notice is provided (e.g., by handing or mailing out the notice, or distributing it via e-mail).
An employer must reemploy service members returning from active duty to a position that the employee would have attained if he or she had been continuously employed, provided the individual is qualified. Employers are not required to reemploy individuals whose employment prior to the military service was for a brief, non-recurrent period or if there was no reasonable expectation that the employment would continue indefinitely.
If, after reasonable efforts by the employer to train, the returning non-temporary employee is not qualified for the higher-level position he or she would have attained if continuously employed without the break for military service, the employer must reemploy the individual in the position he or she left. If the returning non-temporary employee was on military service for 91 days or more and is not qualified for the higher-level position, the employer has the option of offering the returning employee a position of like seniority, status and pay.
The returning service member is required to report back to his or her employer and provide appropriate documentation within a specified amount of time following active military service. The length of time allowed depends on how long the member employee was away on active duty:
• Service of 1 – 30 days: The employee must report to his or her employer by the beginning of the first work shift that begins on the next calendar day following completion of service, after allowance for safe travel home . . . and an eight-hour rest period.
• Service of 31 – 180 days: The employee must submit an application for reemployment no later than 14 days after completing his or her service.
• Service of 181 or more days: The employee must submit an application for reemployment no later than 90 days after completing his or her service.
• The law requires "prompt" reemployment depending on the circumstances of each individual case.
Qualification efforts
The DOL also states that "employers must make reasonable efforts to qualify returning service members who are not qualified for reemployment positions that they otherwise would be entitled to hold . . ." This includes refresher training to update a returning employee's skills where he or she is no longer qualified due to technological advances. This provision requires employers to help returning service members "catch up" (qualify) where necessary in order to return to the job that they would have held had they remained continuously employed. Be aware, however, that even if the person cannot become qualified for that position (for military service of 91 or more days), he or she must be returned to the position held on the date he or she entered active duty or one that nearly approximates that position.
Unqualified returning employees
Protection from discharge
Pension, 401k and other benefit plans
• A reemployed person must be treated as not having incurred a break in service with the employer maintaining a pension plan;
• Military service must be considered service with an employer for vesting and benefit accrual purposes;
• The employer is liable for funding any resulting obligation; and
• The reemployed person is entitled to any accrued benefits from employee contributions only to the extent that the person repays the employee contributions.
Enhanced benefits for disabled veterans
Final thoughts
Let's not forget the employees left behind at your business to do the work. Some of the service members leaving for active duty may be important employees and certainly leaders in the workplace. Your company's teamwork may be disrupted, and teamwork is essential to success in the areas of production, profitability and safety. While full-time employees are away, it may be necessary to review hiring policies to ensure replacements are the highest quality available. "Temps" are often used to replace departing employees but you still must know whom you're hiring and allowing into your workplace. Provide adequate training on safety policies, emergency procedures and other important issues, i.e. sexual harassment and discrimination policies.
Where to look for help
One of the best resources available to business owners is A Non-Technical Resource Guide to the Uniformed Services Employment and Reemployment Rights Act (USERRA), which is available at the VETS Web site at http://www.dol.gov/vets/whatsnew/uguide.pdf. The guide is free and can be printed directly off the Web site. An excellent resource for families of service members is the Guide to Reserve Family Member Benefits that is available at the Reserve Officers Association's Web site at http://www.roa.org. It too can be printed directly off the Web site and provided to your employee's family.
This Loss Prevention Bulletin was provided by Zurich, North America. Zurich is not providing legal advice and assumes no liability concerning the information set forth above.
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