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With troops going into Iraq � and no clear idea when they will return � general counsel need to take a close look at the Uniformed Services Employment and Reemployment Rights Act of 1994, or USERRA. Most bosses will give heartfelt send-offs to employees who are deployed. But employers may be shocked to find that USERRA reaches deep into their HR departments, controlling reemployment, promotion, and retraining, as well as health, vacation, and retirement benefits of workers on military leave. USERRA is a powerful and far-reaching statute that overrides many aspects of personnel policy. Basically the law protects and grants rights to all employees who are absent from work due to “service in the uniformed services.” Specifically, it prohibits employment discrimination, regardless of whether the employees’ military service obligations are current, completed, or prospective; provides a right to reemployment for all employees who are away from work due to military obligations; and protects the benefits of employees. Who’s Protected USERRA applies to all U.S. employers, regardless of the size of their business. The statute supersedes any state law that limits or conditions USERRA’s rights or benefits but does not displace laws that provide greater rights. The somewhat redundant phrase “service in the uniformed services” means employees on active duty or reserve service in the U.S. Army, Navy, Marine Corps, Air Force, or Coast Guard; serving in the Army National Guard or Air National Guard; or serving in the Commissioned Corps of the Public Health Service. Employees serving in any other category designated by the president in a time of war or emergency are also included. Service also includes absences for training, weekend drills, summer camps, and fitness-for-duty examinations. USERRA’s provisions apply regardless of whether the employee serves voluntarily or involuntarily and regardless of how long he or she has worked for the employer. Failure to comply is a serious matter. USERRA prohibits employers from discriminating or retaliating against an applicant or employee because of membership, application for membership, performance of service, or obligation to perform service in a branch of the uniformed services. This prohibition extends to most areas of employment, including hiring, promotion, reemployment, and benefits. The law also covers termination. Employees whose military leave exceeded 180 days may not be let go � except “for cause” � for a year after being reemployed. Employees who served 31 � 180 days get 180 days of job protection. Those who served 30 days or less, however, get no additional job protection. Companies are required to give workers returning from active duty their former or equivalent positions. Furthermore, a returning employee generally must be placed at the seniority, pay, and benefits level he would have attained without military leave. A Few Exceptions To be reemployed, however, a worker must: – supply advance oral or written notice that he is departing for military service; – generally, serve no more than five cumulative years while with a single employer; – be released honorably; and – report back to work in a timely manner and/or submit a timely application for reemployment. In certain instances, if an employee fails to meet these requirements, a company may not be required to take him back. There are also a few exceptions based on conditions at the company. Reemployment is not required if: – a significant change, such as a reduction-in-force, has occurred that makes reemployment impossible or unreasonable; – reemployment would create an undue hardship due to the difficulty and expense of job retraining or accommodating service-related disabilities; or – the original position was brief and nonrecurring, such as a temp job. But do not count on any of these exceptions. They’re narrow, and their requirements are difficult to satisfy. While They’re Away The length of the employee’s military leave also affects the position he gets upon return. Generally speaking, returning employees must be given any promotion they would have gotten had they not been on military leave. Employees away for under 91 days must get promotions due to them if they are qualified or can become qualified after reasonable efforts by the employer. If such efforts fail, they must be given their original jobs back. Employers must also give promotions to employees returning after more than 90 days but can substitute a position of similar seniority, status, and pay � provided the employee is or may become qualified for it. Employers may hire replacements, but they’re still required to reemploy returning service members. Develop a contingency plan that spells out whether replacements can be hired and, if so, how it should be done on short notice. During an employee’s absence, an employer cannot require the use or expenditure of accrued vacation or other paid leave as part of military leave. If an employee on military leave asks to use accrued vacation or other paid leave, however, the employer must permit him to do so. Review your company’s vacation policy and determine how unused vacation time will be treated if a service member’s leave extends beyond the period that vacation must be used. This is especially important when the employer has a “use it or lose it” policy. Benefits Rules Complex employee benefit implications exist during and upon return from military leave. With regard to health benefits, the departing employee is entitled to health continuation benefits similar to those of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA). If the departing employee participates in a health plan and would lose coverage because of the absence, the departing employee must be offered health continuation coverage for himself and his dependents for 18 months or until he fails to return to work. The departing employee may, however, be charged as much as 102 percent of the cost of the coverage, as is the case with COBRA coverage. Health benefit exclusions or waiting periods for returning employees may not be imposed for reinstatement of coverage if they would not have been imposed under the health plan without the military leave. An exception to this is any illness or injury incurred while in service. For the purposes of retirement benefits, military service must not be treated as a break in service. Accrual and vesting must occur as if the employee had been working, not serving in the military. The employer must make any employer money-purchase plan or profit-sharing contributions that the returning employee would have received while on military leave. And the employee must be able to make contributions and receive matching funds while away. USERRA does not require paying employees on military leave, though employers can certainly keep sending paychecks voluntarily if they wish. Certain state laws have additional salary requirements.
Toya Cirica Cook Haley is a labor and employment attorney in the Austin office of Winstead Sechrest & Minick. E-mail: [email protected]

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