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USERRA: New Rules Protect Military Service Members

Author: R Stell Date: December 03, 2007

Legal Fdn logoThe U.S. Department of Labor announced Dec. 16 new regulations under the Uniformed Services Employment and Re-employment Rights Act of 1994, the federal law that governs military service members' workplace rights.  The new regulations are intended to protect the rights of those who leave their civilian jobs voluntarily or involuntarily to serve in the military, including the military reserves and the National Guard.  The law also prohibits employers from discriminating against veterans, members of the military services and applicants for military service.

The regulations, the first to interpret the 1994 statute, emphasize USERRA’s broad reach and pro-service intent.  The rules are effective Jan. 18, 2006.

The regulations should help both employers and their employees understand their rights and responsibilities under the law, and come at a particularly critical time, as the United States has the largest group of mobilized National Guard and reserve members since World War II. According to Secretary of Labor Elaine L. Chao, more than 525,000 members of the National Guard and reserve units have been mobilized for military action in Iraq and Afghanistan since Sept. 11, 2001, and more than 390,000 have been released from active duty. 

“Our citizen-soldiers put themselves in harm's way to defend our freedoms, and now it's our turn to be there for them," Chao said. "These regulations will ensure that the seniority, promotion, health care, pensions and other benefits of our citizen-soldiers are protected when they return home to the jobs they left to serve our country."

Who is Covered?

USERRA is one of the widest-reaching employment laws.  It applies to all U.S. employers, regardless of size.  Consequently, even if an employer has only one employee, it is covered by USERRA.

USERRA protects all employees including part-time, seasonal and probationary employees for absences to perform voluntary and involuntary duty, including active duty, training, weekend drills and fitness-for-duty examinations.   USERRA does not apply to independent contractors.

What are USERRA’s Basic Requirements?

  • Prompt Re-employment:  Employers must reinstate returning service members within two weeks after they apply for re-employment, absent unusual circumstances.  Employers are not obligated to pay employees during military leave.
  • Restoration of Seniority:  Returning service members must receive the same seniority, status, and pay they would have attained if they had remained continuously employed, generally without exception.  The USERRA rules use the phrase “escalator position” to explain that the returning service member must be given the same seniority, status, and pay that would have been attained had the military service not intervened.
  • Accommodation of Disabilities:  An employee’s disability incurred during military service does not impede the right to reinstatement at the same seniority, status, and pay.  Employers must make reasonable efforts to accommodate a disability if it limits the service member’s ability to perform the job.
  • Continuation of Health Insurance and Retirement Benefits:  Employers must continue to provide regular health benefits for the first 30 days of the employee's absence; after 30 days, employers must provide COBRA-compliant coverage.  Upon re-employment, the employee must be treated as not having a break in service for purposes of the employer’s retirement plan.
  • Notice Required:  The new rules require that employers post a notice of USERRA rights where employee notices customarily are placed.  A copy of the poster can be downloaded for free from the Department of Labor’s Web site at www.dol.gov/vets/programs/userra/poster.htm.
  • Employee Requirements:  Service members also have responsibilities under USERRA.  They must follow specific timetables and procedures when they report back to work.  The period an individual has to make application for re-employment or report back to work after military service is based on time spent on military duty. For service of less than 31 days, the service member must return at the beginning of the next regularly scheduled work period on the first full day after release from service, taking into account safe travel home plus an eight-hour rest period.  For service of more than 30 days but less than 181 days, the service member must submit an application for re-employment within 14 days after completing service.  For service of more than 180 days, an application for reemployment must be submitted within 90 days after completing service.

How Does USERRA Affect State, Local and Other Federal Laws?

USERRA does not pre-empt state laws providing greater or additional rights, but it does pre-empt state laws providing lesser rights or imposing additional eligibility criteria.  For example, Illinois law provides employees with 90 days to return to work, regardless of the length of their leave.

What are the Penalties for Non-Compliance?

A court may order an employer to compensate a claimant for lost wages or benefits.  USERRA also provides for additional damages for “willful” violations.

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