When Johnny Comes Marching Home – Remember USERRA

Kegler Brown Labor + Employee Relations Newsletter

More National Guard and Reserve soldiers have been activated since 9/11 than at any time since World War II. President Bush recently announced the deployment of additional troops to Iraq. Increasing numbers of the armed forces have been, and will continue to be, returning home and to work. This is where USERRA – the federal Uniformed Services Employment and Reemployment Rights Act – comes into play. Here is a general overview of the federal law:

Am I entitled to any advance notice when an employee leaves?
Yes. The law requires the employee to provide "advance notice" – which can be either verbal or written – of his or her military service. The Regulations for the law "recommend" that at least thirty days advance notice be given by the employee, if feasible.

What happens while the employee is gone?
While an employee is on leave for military service:

    1. The employee should be treated the same as those on other types of leave for non-seniority benefits (holiday pay, vacation accrual, insurance benefits, etc. should be provided the same as other leaves);
    2. Employees on military leave may, but do not have to, be paid. Employees may use any accrued paid time while on military leave, but cannot be forced to do so;
    3. Employees on military leave can continue health insurance coverage for (i) twenty-four months, or (ii) the period of their service, whichever is less. If the employee is gone for more than thirty days, the employer can require that they pay 102% of the premiums in order to maintain the coverage (i.e., like COBRA payments).

What about reemployment when the leave ends?
Employees can perform military service for up to five years and retain reemployment rights to their job. The law provides time periods within which employees must report back to work, which vary according to the amount of time they are absent (under 31 days, 31-181 days, over 181 days).

The law requires that returning service members must be "promptly" reemployed – under the Regulations, this is "as soon as practicable," but no longer than two weeks after the employee applies for reemployment. Once reemployed:

    1. The law adopts an "escalator principle." This requires that the employee be placed in the position, with the respective pay, seniority, and benefits, that the employee would occupy had they not left for military service. Special provisions exist in the Regulations for the reemployment of employees who are disabled.
    2. The employee is entitled to all seniority-related rights that they had when they left for their service, and that they would have if they had remained in their job during the period of their absence. For example, time while the employee is absent on military leave will count toward meeting the 1,250 hour requirement for FMLA eligibility.
    3. Returning employees must also have their retirement benefits calculated as if they had not been absent from work.

What happens if problems arise?
Employees who return from military service can only be discharged for "cause." Employees returning after less than 180 days' service can be discharged within 180 days only for cause; employees returning after more than 180 days' service can only be discharged within one year only for cause. "Cause" is misconduct for which the employee had actual or implied notice that discharge would result, or other reasons if the employer can prove the discharge would have occurred irrespective of the military leave.

The Regulations provide technical assistance for USERRA compliance. (They can be found at www.dol.gov/vets/regs/final/2005023961.) Penalties for USERRA violations can be costly. As military veterans leave and return for work, be sure that you comply with the law's requirements.