Employers Must Allow Reserve, Guard
Members to Return to Jobs
Under the Uniform Services Employment and Reemployment Rights Act,
reservists and National Guard members who are called to leave their jobs to
perform active duty are given rights to re-employment in their civilian jobs.
Additionally, under the Uniform Services Employment and Reemployment Rights Act
(USERRA), employees returning from active duty are entitled to all rights,
benefits and seniority they would have received otherwise - for example, an
employee's salary should follow the same pay scale it would have had he not
been called to duty. Employees are also entitled to immediate reinstatement of
benefits.
The Act seeks to ensure that members of the uniformed services are entitled
to return to their civilian employment upon completion of their service. They
should be reinstated with the seniority, status, and rate of pay they would
have obtained had they remained continuously employed by their civilian
employer. The law also protects individuals from discrimination in hiring,
promotion, and retention on the basis of present and future membership in the
armed services.
Below are some of the main points of the legislation:
- The cumulative length of time a person may serve in the military and
remain eligible for reemployment rights with the pre-service employer is 5
years.
- An individual must give written or verbal notice to their employer prior to
departure for military service.
- Employers must provide continuation of health insurance (at the service
member's request) for an 18-month period, with payment of up to 102 percent of
the full premium by the servicemember.
- An employee's military service must not be considered a break in employment
for pension benefit purposes, and the person's military service must be
considered service with an employer for vesting and benefit accrual purposes.
- There is no differentiation between voluntary and involuntary service.
- An employee cannot be required to use earned vacation or similar leave days
for military leave of absence.
- Military service will not be counted as time away from the employer for
retirement purposes.
Reemployment Procedures
Reinstatement is strictly based on the duration of the uniformed service and
not the type of military duty performed. For periods of military service up to
30 days, employees must report back to work at the next regularly scheduled
shift on the day following release from the military, safe travel home, and
eight hours of rest. For longer periods of services, reinstatement is not
necessarily immediate, but should be within a matter of days or at most a few
weeks. Following a period of service of 31-180 days, employees must apply for
reemployment within 14 days following release. Following a period of service of
181 days or more, employees must apply for reemployment within 90 days after
release. Failure to return to work or apply for reemployment within the
specified time limits through your own fault does not necessarily forfeit your
reemployment rights, but makes you subject to the employer's rules concerning
unauthorized absence from work.
When applying for reemployment, the employee should:
- Identify himself/herself
- State that they left the employer to perform military service
- State that they completed the service and want to be reinstated
- Be prepared to show documentation such as a DD-214, endorsed orders, or a
letter from the command
The U.S. Department of Labor Veterans' Employment and Training Service
(VETS) is responsible for assisting returning military service members,
including federal government workers.
Further information can be found at the following web site:
http://www.esgr.org/employers2/thelaw.asp
