The rights of employees under the Uniformed Services Employment and Reemployment Rights Act

In the spirit of Memorial Day and this holiday week, I thought it would be appropriate to discuss servicemembers’ rights and responsibilities under the Uniformed Services Employment and Reemployment Rights Act (USERRA).

USSERA protects returning servicemembers from discrimination based on the fact they had to leave their job to perform their military duties. USERRA covers nearly all employees, including part-time and probationary employees. USERRA applies to virtually all U.S. employers, regardless of size.

USERRA requires that servicemembers returning from a period of service in the uniformed services must be allowed to return to their previous position. For the law to apply, the servicemember must meet these five criteria:

 

  • The person must have been away from a civilian job on because of service in the uniformed services;

  • The person must have given notice to the employer that thaey were leaving the job for service in the uniformed services, unless notice was impossible or unreasonable because of military necessity;

  • The total period of military service that the service member has been away for with that employer must not have exceeded five years;

  • The person must not have been released from service under dishonorable or other punitive conditions; and

  • The servicemember must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment, unless timely reporting back or application was impossible or unreasonable.

USERRA provides that returning servicemembers must be reemployed in the job that they would have attained had they not been absent for military service, with the same seniority, status and pay, as well as other rights and benefits determined by seniority. Employers must treat the servicemember as if they were on a furlough or leave of absence and they must be entitled to the non-seniority rights given other similar individuals on non-military leaves of absence. USERRA also requires that reasonable efforts (such as training or retraining) be made to enable returning servicemembers to qualify for reemployment.

The law gives guidance as to time limits for returning to work after a particular number of days of military service:

 

  • Less than 31 days service: By the beginning of the first regularly scheduled work period after the end of the calendar day of duty, plus time required to return home safely and an eight hour rest period. If this is impossible or unreasonable, then as soon as possible.

  • 31 to 180 days: The employee must apply for reemployment no later than 14 days after completion of military service. If this is impossible or unreasonable through no fault of the employee, then as soon as possible.

  • 181 days or more: The employee must apply for reemployment no later than 90 days after completion of military service.

  • Service-connected injury or illness: Reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing.

 

Employee/servicemember health plan coverage is also addressed by USERRA. Individuals performing military duty of more than 30 days may elect to continue employer sponsored health care for up to 24 months. However, they may be required to pay up to 102 percent of the full premium. For military service of less than 31 days health care coverage is provided as if the servicemember had remained employed.

If you believe that you are a servicemember who has been discriminated against because of the fact you had to leave work to serve in the military contact the US Department of Labor. Check out http://www.dol.gov/vets/programs/userra/

This is not legal advice. This page does not create an attorney-client relationship between the reader and Attorney Benjamin Kandy. Please see our disclaimer page.

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