Uniformed Services Employment and Reemployment Rights Act, Learn about the ombudsman services we provide, Emergency Contacts for Disasters and Evacuations, Are not disadvantaged in their civilian careers because of their service, Are promptly reemployed in their civilian jobs upon their return from duty; and. Read on for answers to the most common questions about employment rights and how to manage your National Guard career without jeopardizing your job. Rights Act (USERRA) Frequently Asked Questions A Guide for Human Resources Specialist Defense Civilian Personnel Advisory Service Benefits and Work Life Programs Division Benefits and Entitlements Branch 4800 Mark Center, Suite 05G21 Alexandria, VA 22350 Email: dodhra.mc-alex.dcpas.mbx.benefits-contacts@mail.mil (703) 882-5197 or DSN 381-5197 Fax: (571) 372-1661. USERRA applies to all employees. These rights and benefits include those that are provided for the employee by the employer and by law. If the service member or employer chooses to open a formal investigation regarding a USERRA violation, they may do so by contacting the Department of Labor. The employer bears the burden of proving that the employee’s job would have been eliminated or that he or she would have been laid off. Leave Active Duty and Apply for Reemployment and Return to Work To Obtain Civilian Pension Credit for the Period of Service By Captain Samuel F. Wright, JAGC, USN (Ret. One hundred and twenty (120) days from the date of discharge if the period of service was 31 days or more; 2. In the absence of a formal seniority system, such as one established through collective bargaining, USERRA looks to the custom and practice in the place of employment to determine the employee’s entitlement to any employment benefits that accrue with, or are determined by, longevity in employment. For instance, upon reemployment, you must be returned to your job with the benefits you would have attained had you not taken leave. For example, an employer with only one employee is covered for purposes of the act. The seniority rights, status and pay of an employment position include those established (or changed) by a collective bargaining agreement, employer policy or employment practice. As a general rule, the employee is entitled to reemployment in the job position that he or she would have attained with reasonable certainty if not for the absence due to military service. Not all of these documents are available or necessary in every instance to establish reemployment eligibility. Yes. In accordance with USERRA, an employer must reemploy Service members returning from service in the Uniformed Service ‘promptly’. An employer cannot discriminate against you for being a National Guard member. In general, the employee may perform service in the uniformed services for a cumulative period of up to five years, under the current statute, and retain reemployment rights with the employer. )2 About Sam Wright 1.1.1.7—USERRA applies to state and local governments 1.1.3.3—USERRA applies to National Guard service 1.3.1.2—Character and duration of service What are the guidelines USERRA provides for the employee to return to work after completion of military service? The time limit to report to you depends on the employee’s length of service: For service of 1 to 30 days, the employee must report back to you at the beginning of the first regularly scheduled work period on the next calendar day (after the employee completes The employee’s notice to the employer may be either verbal or written. The time within which employees must return to work following military leave depends on the length of their leave, as follows. USERRA protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service or certain types of service in the National Disaster Medical System. The employee is permitted but not required to identify a particular reemployment position in which he or she is interested. In response to the difficulties encountered by servicemembers attempting to return to civilian employment, the U.S. Department of Labor (DOL) recently issued interpretive regulations to guide employers in complying with the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA or the “Act”). USERRAguarantees an employee returning from military service or training the right to be re-employed at his or her former job (or as nearly comparable a job as possible) with the same benefits. Two of those protections are protection against discrimination and protection of one's pre-deployment job. The Defense Department “strongly recommends that advance notice to civilian employers be provided at least 30 days prior to departure for uniformed service when it is feasible to do so.”. USERRA does not apply to FEMA reservists. For immediate assistance or to access confidential help, call the Military OneSource toll free number at 800-342-9647 or international collect at 1-484-530-5908. The employee may be discharged for cause based either on conduct or, in some circumstances, because of the application of other legitimate nondiscriminatory reasons. An employer must not deny initial employment, reemployment, retention in employment, promotion or any benefit of employment to an individual on the basis of his or her military service. Such links are provided consistent with the stated purpose of this website. The employee is entitled to the seniority and seniority-based rights and benefits that he or she had on the date military service began, plus any seniority and seniority-based rights and benefits that the employee would have attained if he or she had remained continuously employed. What criteria must the employee meet to be eligible under USERRA for reemployment after military service? If the employee was unable to obtain orders releasing him or her from service in the uniformed services before the expiration of the five-year period, and the inability was not the employee’s fault. USERRA prohibits employers from discriminating aga inst employees who served, are currently serving, ... return to work. Health plan administrators may develop reasonable procedures for payment, consistent with the terms of the plan. Yes. Yes. If the non-seniority benefits to which employees on furlough or leave of absence are entitled vary according to the type of leave, the employee must be given the most favorable treatment accorded to any comparable form of leave when he or she performs service in the uniformed services. For example, an employer cannot require a service member who returns home at 10 p.m. to report to work 2.5 hours later at 12:30 a.m. The employer cannot discriminate against you because of your military connection. Service performed in a uniformed service if he or she was ordered to or retained on active duty under the following circumstances: The employee is deemed to be on furlough or leave of absence from the civilian employer while performing military duty. In particular, the employee’s status in the reemployment position could include opportunities for advancement, general working conditions, job location, shift assignment, rank, responsibility and geographical location. The Act prohibits employment discrimination against persons because of their absence from their civilian employment due to military service or training in the Armed Forces Reserve, the National Guard, or other uniformed services. Such links are provided consistent with the stated purpose of this website. For instance, upon reemployment, you must be returned to your job with the benefits you would have attained had you not taken leave. USERRA protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service or certain types of service in the National Disaster Medical System. USERRA applies to all public and private employers in the United States, regardless of size. As a general matter, accrual of vacation leave is considered to be a non-seniority benefit that must be provided by an employer to an employee on a military leave of absence only if the employer provides that benefit to similarly situated employees on comparable leaves of absence. Discover what servicemembers must be aware of when returning to work. What are the basic eligibility requirements for job protection under USERRA? The USERRA prohibits all employers from discriminating against employees that leave to serve in the military and requires the employer to reinstate the employee if the absence is five years or less. If the employee performs service in the uniformed service for 31 or more days, he or she may be required to pay no more than 102% of the full premium under the plan, which represents the employer’s share plus the employee’s share, plus 2% for administrative costs. The USERRA does not provide a claim for hostile work environment. 1002.181 states that ‘prompt’ typically means within two weeks of the employee’s application to return to work, unless unusual circumstances exist. Service of 1 to 30 Days If the employee has coverage under a health plan in connection with his or her employment, the plan must permit the employee to elect to continue the coverage for a certain period of time as described below: When the employee is performing military service, he or she is entitled to continuing coverage for himself or herself (and dependents if the plan offers dependent coverage) under a health plan provided in connection with the employment. 1-30 days of service: Report next scheduled workday, 31-180 days of service: Apply within 14 days completion of service, 181+ days of service: Apply within 90 days after completion of service. Are not discriminated against in employment based on past, present or future military service. 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