['Leave', 'Discrimination']
['Military Leave', 'USERRA', 'Veterans']
09/17/2024
Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.
...
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) was enacted to provide reemployment rights for veterans, and members of the National Guard and National Reserve, following qualifying military service. The final rule (20 CFR Part 1002) was published in the Federal Register December 19, 2005 and was effective January 18, 2006.
All civilian employers, public and private, must comply with USERRA. Federal employees are covered under 5 CFR 353.
The Act protects employees absent from work for the following reasons:
- Service in the Army, Navy, Marine Corps, Air Force, Coast Guard;
- Service in the Army National Guard or Air National Guard during Federal authority call-up;
- Attendance at military training, weekend drills, summer camps, or fitness-for-duty examinations; or
- Military funeral honors duty.
In addition, USERRA provides protection for employees serving in the following:
- The Commissioned Corps of the Public Health Service,
- The National Disaster Medical System, and
- Any other category designated by the President in time of war or emergency.
The job protection applies for up to five years (longer if the President declares a national emergency).
Posting requirement
Employers are required to provide to persons entitled to the rights and benefits under the Uniformed Services Employment and Reemployment Rights Act (USERRA), a notice of the rights, 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 the notice via electronic mail).
USERRA protections
If you have employees who fall under the protections of USERRA, you must not discriminate against them based on their past military service or current military obligation. You must also refrain from discriminating against employees who intend to join one of the uniformed services.
Let’s say, for example, that you have an employee who is up for a promotion that will entail greater responsibility and a greater time commitment. You learn that he/she is considering joining the National Guard. You cannot reconsider offering him/her the promotion based on this information.
When employees return from service, you must:
- Reemploy them;
- Preserve their seniority status and benefits; and
- Refrain from discriminating against them in regard to hiring, retention, and promotion.
USERRA regulates how employers deal with:
- Reemployment
- Promotions
- Retraining
- Vacation
- Health benefits
- Compensation
- Retirement benefits
- Termination
Reemployment
Employers must give returning employees their former positions (or equivalent positions), and place them at the same seniority, pay, and benefits levels that they would have attained without being absent (the escalator position).
Advance notice of leave
In order to be considered for reemployment, employees must give their employer an advance notice of military leave. They can do this either orally or in writing. However, employers can’t require that employees provide written orders, or training schedules, as a condition for taking military leave. The reason for this is that the employee may not have any written orders. During an emergency a military unit is often told to immediately report to a specified location, and written orders can’t be prepared in such a short time period. In this case, oral notification is sufficient.
Employees who are members of the National Guard or Reserve must provide their employers with advance notice of their inactive duty training. This could include a copy of orders, the annual drill schedule, or other types of documentation.
Returning to work
After employees are discharged from military service or return from National Reserve or Guard training, they must notify their pre-service employer of their intent to return to work by either reporting to work or submitting a timely application for reemployment.
If employees fail to do so, the employer does not have to reemploy them according to the provisions of USERRA.
When an employee is absent due to training or military duty for less than 31 days, the returning employee doesn’t have to submit an application for reemployment. He or she can report for work the beginning of the first regularly scheduled work period on the first day following completion of military service (after time off for travel and rest).
After periods of military leave of absence for more than 30 days, the employee must submit an application for reemployment (written or verbal) within 14 days after the completion of service.
If the period of service was for more than 180 days, the application for reemployment (written or verbal) must be submitted within 90 days after completion of service.
The reason the employee must submit an application is to give the employer notice of his or her intent to return. This notice allows the employer to make plans for placing the returning employee in his or her previous position. In cases where the employee has been absent for a considerable time, the employer may have had to move someone else into the job.
Proof of service and discharge
The employer may request the returning employee to provide the following documents to satisfy the requirement for eligibility for reemployment after a period of service of more than 30 days:
- Department of Defense 214 Certificate of Release or Discharge from Active Duty;
- Copy of duty orders prepared by the facility where the orders were fulfilled carrying an endorsement indicating completion of the described service;
- Letter from the commanding officer of a Personnel Support Activity or someone of comparable authority;
- Certificate of completion from military training school;
- Discharge certificate showing character of service; and,
- Copy of extracts from payroll documents showing periods of service;
- Letter from National Disaster Medical System (NDMS) Team Leader or Administrative Officer verifying dates and times of NDMS training or Federal activation.
The employer doesn’t have to reemploy the employee under USERRA in the following circumstances:
- If the employee’s discharge was dishonorable, or a bad conduct discharge;
- If the employee was separated from uniformed service under other than honorable conditions; or
- If the employee was a commissioned officer dismissed or dropped from the service under 10 USC 1161(a) or (b).
Replacement workers
The employer can hire workers to replace absent service members, but must reemploy returning service members. In order to be prepared for this circumstance, it’s a good idea to have a contingency plan in place that contains the following information:
- Whether replacements should be hired;
- How they are hired on short notice (for example, through a temporary employment agency); and
- The status of the replacement workers after the service member returns.
Hiring through a temporary employment agency may be advantageous, as the replacement workers hired through the agency would technically be employees of the temp agency.
Employer’s right
After periods of military leave of absence for more than 30 days, the employer has the right to request official, written military orders. These orders can then be used to establish the employee’s basic eligibility for protection under USERRA.
Employer’s defense
When the employer’s circumstances have changed so extensively that reemployment is impossible, unreasonable, or creates an undue hardship, the employer need not reemploy.
An “impossible” or “unreasonable” circumstance would be a significant reduction in a company’s workforce. For example, if the employee’s job has been eliminated and there are no other jobs available, the employer doesn’t have to take the worker back.
USERRA defines “undue hardship” as an action that requires a “significant difficulty and expense” when considered in light of the following:
- The nature and cost to the employer;
- The overall financial resources of the facility, including the effect of the action on expenses and resources;
- The overall financial resources of the employer, including:
- the overall size of the business; and
- the number, type, and location of facilities; and
- The employer’s type of operation or operations and the impact on facility operations.
This defense is very limited and narrow in scope — employers may find it hard to prove in a court of law.
Promotions and the “escalator” principle
USERRA reemployment adopts the “escalator” principle that has been a key concept in federal veteran’s reemployment legislation. The escalator principle requires that each returning employees step back on the seniority escalator at the point they would have occupied if they had remained continuously employed.
The position may not necessarily be the same job the person previously held. For instance, if the employee would have been promoted with reasonable certainty had the person not been absent, the employee would be entitled to that promotion upon reinstatement.
If an employee is away from work for less than 91 days, he or she must get promotions due if qualified, or can become qualified. If he or she is not qualified, or can’t become qualified, the employee must be reinstated in the original job.
If an employee is away from work for 90 days or more, he or she must get the position that would have been attained (that is, a promotion) had employment been continuous. If that is not possible, the employer has to substitute a position of equal seniority, status, or pay.
Retraining
Refresher training is required for returning employees who need it. The employer must help the returning employee qualify to return to a job he or she would have held, or one that nearly approximates it.
For example, an employee works in a warehouse, manually tracking outgoing orders. She is called up for military duty and is away from work for six months. While she is gone, the warehouse is converted to computerized order tracking. When the employee returns to work, she must be trained in how to operate the computer tracking system and given her previous job back.
After the training, if the employee can’t perform the job, she must be placed in a position of equal seniority, status, or pay.
Vacation
The employer can’t force an employee to use vacation or other paid leave while on military leave. However, the employee can ask to use vacation, or other paid leave, and the employer must allow it.
For example, an employee may want to use accumulated vacation because he or she would then continue to receive health insurance benefits during the vacation period, since he or she would technically be continuously employed.
Employers should review their vacation policy, especially if it has a “use it or lose it” provision. You may want to change the policy if the review indicates that there is potential for the “use it or lose it” provision to penalize employees who are absent under USERRA. For example, if an employee is away on military duty, he or she would not be able to use accrued vacation and could lose it under the provision.
Health benefits
Employers are not required by federal law to provide benefits to active duty personnel. However, an employer must offer the departing employee continuation benefits similar to those of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). This benefit must be offered for 24 months, and the employer can charge the service member as much as 102 percent of the cost of coverage. (The 102 percent figure consists of paying for all of the coverage and a two percent administrative fee.)
In addition, the Health Insurance Portability and Accountability Act (HIPAA) gives the departing employee, and his or her family, the right to enroll in another health insurance plan immediately, regardless of the plan’s enrollment period.
If the employee’s military leave lasts for less than 31 days, the employer must continue to pay the company’s portion of the premium.
Service members that are reemployed can’t be subject to health benefit exclusion or a waiting period. These employees must be given health benefits immediately upon return.
Compensation
Employers are not required by federal law to provide any salary or wages to active duty personnel. However, employers can send paychecks voluntarily. Some companies make up the difference between military pay and the employee’s salary. Other employers pay the full amount of the salary, in addition to the military pay the worker receives. Some employers pay nothing.
Effective in 2008, the Heroes Earnings Assistance and Relief Tax (HEART) Act gives a tax credit to small businesses (those of 50 employees or less) to encourage them to pay reservists the difference in wages between their pay as an employee versus their military pay.
Paying wage or salary
If an employer decides to pay wages or salary to service members, there are certain criteria that can be used. Examples could include the following:
- Whether the service is voluntary or involuntary — did the employee sign up, or was he or she drafted or called into active service in the National Guard?
- Is the employee full-time or part-time?
An employer could have a written policy that allows for salary or wages to be paid to employees who meet certain criteria (for example, those who are full-time and whose military service is involuntary). Service members, however, are entitled to other paid leave benefits that are provided to other employees who are on a leave of absence.
Retirement benefits
Employers can’t consider military service as a reason not to pay retirement benefits. Accrual and vesting must occur as if the employee had been working.
If an employee is voluntarily paying into a retirement plan before leaving for military service, he or she must be allowed to make up for missed payments. Payments to the plan can be made beginning with the date of reemployment and continue for a time period that is up to three times the length of the person’s military service. There is a five year limit to this payment period. A reemployed person is entitled to any accrued benefits from employee contributions only to the extent that the person repays the employee contributions.
For example, if a person was in military service for one year, as soon as he or she returns and is reemployed, payments to the retirement plan resume. This employee then has up to three years to make payments to make up for the one year lapse.
In June of 2008, the Honoring Existing Retirement Obligations for Every Servicemember (HEROES) Act was signed into law. Under this law, when a service member dies while on active duty, in order to comply with the requirements of USERRA, an employer is required to treat the day prior to the date of death as the date the employee returned to work for purpose of triggering payment of survivor benefits or other beneficiary payments under the employee’s pension plan
Termination
Returning service members can’t be terminated for a specific period of time. USERRA requires that:
| If the employee served: | Then he/she can’t be terminated for: |
|---|---|
| 31 to 180 days | 180 days after returning to work |
| 181+ days | One year after returning to work |
Employers can only terminate a returning service member “for cause.” Generally, “for cause” is determined by asking two questions:
- Is it reasonable to discharge an employee for the conduct in question?
- Did the employee receive fair notice, expressed or implied, that such conduct could result in discharge?
An example of termination “for cause” would be if an employee was caught stealing.
Other employee rights
Pay for military leave
In addition to the rights mentioned earlier, the employee also has protection under the Fair Labor Standards Act (FLSA). Specifically, the FLSA states that the employer has to pay a full week’s salary for salaried employees for the following reasons:
- Any week the employee performs any work. Example: An employee goes into work Monday morning and is called up for military service in the afternoon. In this case, the employer needs to pay the employee’s entire salary for the week.
- Any week in which the employee is on military leave and performs work for the employer. Example: An employee is assigned to a military base and communicates, by email, with her manager several times each week about work-related issues. Since she is technically working for her civilian employer she may be entitled to her salary (in addition to her military pay).
Injured while serving
If an employee is injured during military service and becomes disabled, the employer must make reasonable effort to accommodate the disability. If that’s not possible, the employee must be employed in a position of equal seniority, status, and pay.
If the employer can’t do that, the worker must be employed in a position consistent with his or her limitations that most nearly matches his or her previous position in terms of seniority, status, and pay.
Because of these special requirements, USERRA offers the disabled veteran greater protection than that offered by the Americans with Disabilities Act (ADA). The ADA doesn’t mandate job transfers where an employee is not qualified to perform the essential functions of a position, with or without reasonable accommodations.
You may have employees who were injured or contracted an illness while in military service and covered under USERRA. Often, these employees need rehabilitative care or therapy. Those medical services would be covered under the Veterans Healthcare System, which is part of the Veterans Health Administration.
State laws
Individual states may have laws providing greater protection than USERRA. If that is the case, USERRA does not preempt those laws, but it does preempt state laws that provide less protection.
USERRA and the Family and Medical Leave Act (FMLA)
FMLA provides eligible employees of a covered employer the right to take up to 12 workweeks of unpaid, job-protected leave, during any 12 months, for the birth and care of a newborn, adoption, or foster care; or a serious health condition of the employee or certain family members.
In order to be eligible for leave under the FMLA, employees must meet several eligibility criteria. Two of these criteria affected by USERRA are: (1) the person must have been employed by the employer for at least 12 months; and (2) the person must have worked at least 1,250 hours for that employer during the 12-month period preceding the start of the leave. The requirement of 1,250 hours worked applies to persons employed by private employers, state and local governments, and the Postal Service.
An employee returning after military service should be credited with the hours-of-service that would have been performed but for the period of military service in determining FMLA eligibility. Accordingly, a person reemployed following military service has the hours that would have been worked for the employer added to any hours actually worked during the previous 12-month period to meet the 1250 hour requirement.
In order to determine the hours that would have been worked during the period of military service, the employee’s pre-service work schedule can generally be used for calculations. For example, an employee who works 40 hours per week for the employer returns to employment following 20 weeks of military service and requests leave under the FMLA. To determine the person’s eligibility, the hours he or she would have worked during the period of military service (20 x 40 = 800 hours) must be added to the hours actually worked during the 12-month period prior to the start of the leave to determine if the 1,250-hour requirement is met.
Enforcement
Veterans Employment and Training Service (VETS) provides assistance to persons claiming rights under USERRA, including persons claiming rights with respect to the federal government as a civilian employer. USERRA has granted VETS subpoena authority so that it can obtain access to witnesses and documents to complete its investigations in a timely and comprehensive manner.
FAQs
Who must comply with USERRA?
All civilian employers, public and private, must comply with USERRA. In addition, federal employers must also comply.
Can an employer refuse to allow an employee to attend scheduled drills or other annual military training?
No. Employees must be excused to attend duty training (for example, National Reserve drills) or annual training.
Is prior notice to the employer required for leave of absence for military duty?
Yes. Unless precluded by military necessity, advance notice must be provided either orally or in writing. Employees who participate in the National Guard or Reserve must provide their employers as much advance notice as possible.
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['Leave', 'Discrimination']
['Military Leave', 'USERRA', 'Veterans']
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Copyright 2024 J. J. Keller & Associate, Inc. For re-use options please contact copyright@jjkeller.com or call 800-558-5011.