With few exceptions, USERRA and related—and even more aggressive—state laws guarantee benefits and reemployment of employees on military leave. We started our briefing yesterday. Here’s the rest of it, and a reference that really explains it.
Yesterday’s Daily Advisor laid out the broad requirements of the Uniformed Services Employment and Reemployment Rights Act (USERRA.) We pointed out that employers need to reacquaint themselves with this law as the nation moves toward a time when U.S. forces begin returning home en masse from Iraq and other battlegrounds.
The law, we said, covers all employers, regardless of size or industry sector. It generally requires you to reinstate a returning employee to the job he or she would have had if they had stayed, or one equivalent in pay and seniority, and to provide many of the same benefits during service as if the person continued employment.
Employment and benefits rights under USERRA finally explained in plain English! It’s BLR’s Military Leave: The Complete Guide to USERRA Compliance. Try it at no cost or risk. Click for details.
Normally, job protection lasts 5 years (or up to 2 years longer, if convalescing from illness or injury suffered in the service), and training time—such as the 2 weeks National Guard troops spend in the field each year—is also not counted. But in actuality, many experts think there is currently no time limit during an official national emergency, as was declared by President Bush after 9/11. Anyone terminating an employee returning from more than 5 years of service does so, said the Littler Mendelson P.C. law firm, “at their peril.”
Today, let’s look at some of USERRA’s provisions in more detail, as explained in BLR’s reference, Military Leave: The Complete Guide to USERRA Compliance:
–Taking leave. When employees are called up or volunteer for service, they must provide notice to employers. This can be done in writing or verbally. You are entitled to documentation that proves the leave is military. Many employers accept a letter from the unit commander.
–During Leave. Seniority and pension credit must continue to accrue, just as if the employee was still on the job. Health care must remain available for 24 months, the first 31 days at the usual employee contribution rate. The remainder may be (but does not have to be) charged at 102 percent of full premium. The employee may also apply for TRICARE, a military healthcare program, if service exceeds 30 days.
–Return from leave. Service personnel must notify the employer that they wish to return, in writing or verbally, within specified time periods. The longer the leave, the more time the worker has to notify, up to 90 days after leaving active duty. If a leave-taker would have been upgraded to a higher-level job had he or she stayed, that’s the job they get. If not qualified for it, they have a right to receive training for it.
–Retaliation and discrimination. Employees on military leave must be treated the same as employees on disability, jury duty, or other permitted leave. If vacations accrue during these leaves, so must they for military leave-takers. If you pay others on leave, you must pay those in the military. What’s more, there can be no negative employment actions taken against an employee for serving or for filing a discrimination claim relating to that service. And, depending on their time in the military, returning veterans are guaranteed their jobs for up to 1 year, unless terminated for cause.
Examine BLR’s Military Leave: The Complete Guide to USERRA Compliance for up to 30 days, completely without risk. Click to learn more.
Can you legally refuse to reemploy those on military leave? Yes, if you had a layoff that would have affected them had they stayed, they need not be reemployed on return. However, they must receive the same severance and recall rights as others who were laid off. You can also terminate if, after reasonable accommodation, a disability a veteran incurred in the service proves an “undue hardship” on your business.
If you do deny reemployment, you have the burden of proving that your action was legal. Expect officials to be hard-nosed in making you prove your case.
–State law. The states have been more aggressive in protecting veterans’ rights than the federal government. Most states provide upgraded protection. And as in all federal/state labor law conflicts, the standard most favorable to the employee applies.
All this is explained in painstaking detail, with numerous examples, in BLR’s Military Leave: The Complete Guide to USERRA Compliance. There is a separate section that explains the differences in each state, and the forms, postings, and prewritten policies and notices needed to administer, keep records on, and prove the legality of your military leave program, are included.
The book is available for a no cost, no risk, 30-day inspection in your office. Click the links on this page and we’ll be happy to arrange it.
When Johnny and Jennie Come Marching Home …
… You’ll need to give them not only a hardy but also a legal welcome. That means understanding all the complex provisions of USERRA and even more aggressive, little-publicized state laws on reemployment of veterans. The guidance and tools you need are in BLR’s Military Leave: The Complete Guide to USERRA Compliance. Examine it at no cost or risk. Click for details.