or her probable advancement had employment been uninterrupted.
For example, prior to deployment, an employee completed the training needed to advance from a counter sales position to inside sales when an inside sales position was available. Upon reemployment, the employee would qualify to return to counter sales and would once again be in line for promotion to inside sales. If an inside sales position had become available during the military leave, unless the employer’s circumstances have changed sufficiently, the returning employee would be placed in the inside sales position.
Two notes: 1) This “changed circumstances” exception is narrowly interpreted and does not apply where a replacement worker has filled the position; and 2) reemployment rights do not apply to positions where there was no reasonable expectation that the employment would continue indefinitely for a significant period.
Health benefits and pension benefits. For leaves of fewer than 31 days, healthcare coverage shall be provided as if the employee had remained employed. Where service members are on duty for more than 30 days, they are entitled to continue employer-sponsored healthcare for themselves and their families for up to 24 months, similar to COBRA rights. Upon return from military service, health insurance coverage is reinstated without any waiting period or exclusion for pre-existing conditions. This rule does not apply to the coverage of any illness or injury incurred during the employee’s performance of military duty.
For pension purposes, returning service members must be treated as though they have been continuously employed for purposes of participation, vesting, and accrual of benefits. A returning service member is given an extended period of time in which to pay employee contributions for the purposes of employer matching.
Termination protection. An individual cannot be discharged, except for cause, for one year after being reemployed if that employee served in the military for more than 180 days. A returning employee is protected from discharge without cause for 180 days if the period of service was for more than 30 days but less than one year.
State laws. USERRA does not preempt state laws providing greater rights, but does preempt state laws providing lesser rights. Employers are advised that many states have similar laws for “state” military duty or where a state governor calls up members of the National Guard.
Kelly is a human resources consultant with experience in distribution. Contact her at firstname.lastname@example.org. This material is provided as general information and is not a substitute for legal or other professional advice. Additional information explaining an employer’s obligations under USERRA is available at the U.S. Department of Labor’s Web site at www.dol.gov.
Employers and employees need to be aware of their rights and responsibilities under the Uniformed Services Employment and Reemployment Rights Act (USERRA). This article appeared in the August 2006 issue of The Electrical Distributor magazine.
Since almost half of our national defense is dependent upon the guard and reserve, many businesses have been affected by the mobilization of men and women to fight the war on terror.
USERRA is the latest federal law to provide employment and reemployment rights to veterans since World War II. It was enacted following the first Gulf War to address the concerns raised by veterans returning from military service in that conflict. Final regulations, published in December 2005, became effective in January.
Under USERRA, it is unlawful for an employer to refuse an employee’s military leave of absence or to discriminate in employment or reemployment based on military service. The law extends reemployment rights to members of the uniformed services. Specifics include:
Covered employers. USERRA applies to any employer that either pays an individual a salary or wages to perform work or controls an individual’s employment opportunities. There is no “minimum number of employees” requirement, so USERRA applies to companies of all sizes’from the smallest, family-owned distributorship to the largest publicly held corporation.
USERRA notice requirement. While it is not required that an employer post the USERRA rules, employers are required to provide all persons entitled to rights and benefits under USERRA with a notice of the rights, benefits and obligations. Practically speaking, the most obvious way to meet the notice requirement is to post the model poster in the place where legally required workplace posters are customarily displayed. (The text of the required notice and the model poster are available on the Department of Labor’s Web site.)
Nondiscrimination. It is unlawful to deny initial employment, reemployment, retention or promotion to a person in the uniformed services.
Reemployment rights and employment benefits. An employee is entitled to reemployment rights and maintenance of employment benefits provided the person meets five eligibility criteria:
- Held a civilian job with the employer
- Gave advance notice that he or she was leaving for service
- The period of service did not exceed five years
- Was released from service under honorable conditions
- Reported back to the civilian job in a timely manner or submitted a timely application for reemployment
Returning employees’ job rights. The job position to which a returning employee is entitled depends upon the length of military service. For service up to 90 days, employees are entitled to return to the positions in which they were employed if their employment had not been interrupted.
For service more than 90 days, employees are entitled to return to pre-leave positions or a position of “like seniority, status, and pay, the duties of which the person is qualified to perform.” Employers are required to make reasonable efforts to train returning employees in order to qualify for reemployment. In addition, employers are required to reasonably accommodate returning employees who are disabled during military service.
“Escalator” principle. This requires that a returning employee is entitled to the same position and pay grade, or to the position and pay grade the employee would have held if employment had been uninterrupted. It may mean that the returning employee is entitled to the pre-service position, a better position, a worse position, or no position at all ‘ based on his