Reemploying Employees Returning From Military Service
Benjamin Franklin once quipped, “There never was a good war, or a bad peace.” Nobody understands what Franklin meant more than the ordinary soldiers, sailors and airmen who risk their lives to serve our country around the world. Sometime, however, reservists or National Guard members who are called up find that their former employers are less than eager to take them back upon their return. Companies should know, however, that veterans usually have the right to get their former job back if they return to their former employment within five years of enlistment or activation.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) governs the rights of service members wishing to return to their former employment after a period of active duty in the uniformed services. Protected employees are those who have served in the Armed Forces, as well as the commissioned corps of the Public Health Service and the National Disaster Medical System. Although most often understood as applying to National Guard members and reservists, USERRA also applies to the active components of the Armed Forces. USERRA does not apply to National Guard members activated under state, rather than federal, authority. However, Utah, like many other states, has state law protecting the rights of National Guard members who serve under state orders.
Under USERRA, employees who voluntarily or involuntarily leave their civilian jobs to serve in the uniformed services can go with the knowledge that they will be able to return to their civilian jobs with the same pay, benefits, and status they would have had if they had not been away on military duty. USERRA applies to all employees, including executive, managerial, or professional employees. It even covers temporary, seasonal, or part-time employees. However, USERRA does not cover independent contractors or employees hired for a brief, nonrecurrant period with no expectation that employment will continue for a significant or indefinite period.
In order to qualify for reemployment, a service member must provide advance notice of the service to his or her employer, be absent from his or her job for no longer than five years, receive a discharge under honorable conditions, and return to work or apply for reemployment in a timely manner. However, the employee is not required to decide in advance of leaving the civilian employment position whether he or she will seek
reemployment after completing uniformed service, and the employee is entitled to reemployment even if he or she told the employer that he or she did not intend to seek reemployment following military service. USERRA provides that qualifying service time includes time spent away from work for military fitness exams, including evaluations of physical, medical, mental, educational, or other types of fitness for military service. Qualifying service time may also include intermittent pre-deployment work absences to allow the service member to get his or her affairs in order prior to activation.
USERRA also prohibits employers from discriminating against individuals in any way on the basis of military service, and it requires that reasonable efforts (such as training or retraining) be made to enable returning service members to refresh or upgrade their skills to help them qualify for reemployment. While on active duty, individuals are also considered to be on a furlough or leave of absence and are entitled to the non-seniority rights accorded employees on non-military leaves of absence.
In 2005, the Department of Labor issued new rules to implement the changes to USERRA brought about by the Veteran Benefits Improvement Act of 2004 (VBIA).
The VBIA amended USERRA by adding a requirement that employers provide a notice of the rights, benefits, and obligations of employees and employers under USERRA. The text of the required notice is available online from the Department of Labor. Employers may provide the notice by posting it where other employee notices are customarily placed. However, employers may choose to provide the notice in other ways that ensure that the full text of the notice is provided. For instance, companies could mail, email, or hand-deliver the notice to all employees.
Our service men and women work hard to protect our freedom, and USERRA ensures they will not be penalized for their service when reentering the workforce. Employers should understand USERRA and make all employees aware of its provisions to safeguard this right and prevent potential litigation.
Daniel C. Carr, an attorney with the law firm of VanCott, Bagley, Cornwall & McCarthy, is a member of the Labor and Employment Law Group. He can be reached at 801.237.0402 or at dcarr@vancott.com.
The Uniformed Services Employment and Reemployment Rights Act (USERRA) governs the rights of service members wishing to return to their former employment after a period of active duty in the uniformed services. Protected employees are those who have served in the Armed Forces, as well as the commissioned corps of the Public Health Service and the National Disaster Medical System. Although most often understood as applying to National Guard members and reservists, USERRA also applies to the active components of the Armed Forces. USERRA does not apply to National Guard members activated under state, rather than federal, authority. However, Utah, like many other states, has state law protecting the rights of National Guard members who serve under state orders.
Under USERRA, employees who voluntarily or involuntarily leave their civilian jobs to serve in the uniformed services can go with the knowledge that they will be able to return to their civilian jobs with the same pay, benefits, and status they would have had if they had not been away on military duty. USERRA applies to all employees, including executive, managerial, or professional employees. It even covers temporary, seasonal, or part-time employees. However, USERRA does not cover independent contractors or employees hired for a brief, nonrecurrant period with no expectation that employment will continue for a significant or indefinite period.
In order to qualify for reemployment, a service member must provide advance notice of the service to his or her employer, be absent from his or her job for no longer than five years, receive a discharge under honorable conditions, and return to work or apply for reemployment in a timely manner. However, the employee is not required to decide in advance of leaving the civilian employment position whether he or she will seek
reemployment after completing uniformed service, and the employee is entitled to reemployment even if he or she told the employer that he or she did not intend to seek reemployment following military service. USERRA provides that qualifying service time includes time spent away from work for military fitness exams, including evaluations of physical, medical, mental, educational, or other types of fitness for military service. Qualifying service time may also include intermittent pre-deployment work absences to allow the service member to get his or her affairs in order prior to activation.
USERRA also prohibits employers from discriminating against individuals in any way on the basis of military service, and it requires that reasonable efforts (such as training or retraining) be made to enable returning service members to refresh or upgrade their skills to help them qualify for reemployment. While on active duty, individuals are also considered to be on a furlough or leave of absence and are entitled to the non-seniority rights accorded employees on non-military leaves of absence.
In 2005, the Department of Labor issued new rules to implement the changes to USERRA brought about by the Veteran Benefits Improvement Act of 2004 (VBIA).
The VBIA amended USERRA by adding a requirement that employers provide a notice of the rights, benefits, and obligations of employees and employers under USERRA. The text of the required notice is available online from the Department of Labor. Employers may provide the notice by posting it where other employee notices are customarily placed. However, employers may choose to provide the notice in other ways that ensure that the full text of the notice is provided. For instance, companies could mail, email, or hand-deliver the notice to all employees.
Our service men and women work hard to protect our freedom, and USERRA ensures they will not be penalized for their service when reentering the workforce. Employers should understand USERRA and make all employees aware of its provisions to safeguard this right and prevent potential litigation.
Daniel C. Carr, an attorney with the law firm of VanCott, Bagley, Cornwall & McCarthy, is a member of the Labor and Employment Law Group. He can be reached at 801.237.0402 or at dcarr@vancott.com.
Copyright 2006. Published for general informational purposes only, and should not be construed as legal advice. If you need legal advice please consult with your attorney.