By Debbie Gregory.
The federal laws outlining the rights of Reserve and National Guard soldiers and the duties of their civilian employers are complicated. Those rules are outlined in the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) and are an important guide for employees and employers to understand. Furthermore, every business, whether it employs one military member or 1,000, is legally bound to follow these federal mandates.
Nearly half of the nation’s military members are part of the Guard and Reserve forces, meaning at some point many civilian employers will lose their employees to military duties. The USERRA laws help make that transition smoother by outlining expectations employers must meet during a military member’s employment, re-employment and retention while serving in uniform.
It is important for employers to note that the law’s definition of military service is broad, and covers all military training, including duty performed on a voluntary or involuntary basis, and in time of war or peace. It also covers military members who enter active duty as part of a response to a national disaster.
Major points of the USERRA that employers should know:
– Employers cannot refuse to hire an individual because of pending military training.
– After military leave, the employer must re-employ the individual to the position they would have held had they not deployed with the military.
– Employers must also determine what pay or promotions the employee would have received while they were gone on military leave, and increase their pay to that amount, as well as provide them with the seniority and status they would have attained.
– USERRA applies to all employees, including executive, managerial and professional employees.
– The employee is not required to get permission from their employer before performing military, service but must give notice of the upcoming service.
– If the employee’s most recent period of service in the military was more than 30 days, he or she must not be discharged, except for cause, for: (1) 80 days after re-employment if the employees service was more than 30 days but less than 180 days; or for (2) one year after reemployment if the employee’s most recent period of uniformed service was more than 180 days. This law essentially amends the “at will” doctrine under these circumstances.
– If the military service exceeds 30 days, the employer can request documentation in connection with the employee’s re-employment.
– Unlike FMLA, there is no special working time pre-requisites for an employee to vest into eligibility for USERRA. The law’s rights kick in on the first day of employment.
The Employer Support of the Guard and Reserve (ESGR) is available for both employees and employers, to explain the laws and act as a mediator between military members and their civilian employers. For assistance, contact them at www.ESGR.MIL or at 1-800-336-4590.