Contributed by Carly Zuba
As touched upon in our last posting, many employers may see a mini-influx of men and women from the uniformed services applying for or returning to positions at their companies, as the last of the U.S.troops have withdrawn from Iraq. As a result, one of the federal laws that employers should be familiar with when a veteran is applying for a job is the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). The Department of Labor has developed an interactive website to help employers understand their responsibilities under the law. Here is the shortened “411” on USERRA:
- First of all, what is USERRA? USERRA’s purpose is to ensure that members of the uniformed services can return to their civilian employment upon completion of their service. Additionally, USERRA protects individuals from discrimination in hiring, promotion, and retention on the basis of present and future membership in the uniformed services.
- Who is covered by USERRA? USERRA applies to all employers, regardless of their size, and all employees, except for temporary workers. It is important to keep in mind, however, that many states have laws that go above and beyond the protections provided by USERRA, so employers should ensure that they are in compliance with state military leave laws as well.
- What does USERRA require of employers? USERRA requires all employers to reinstate employees to the same or similar position upon the employee’s return from military leave, with no loss of seniority. Employees who serve 90 or fewer days are entitled to return to the same job they would have held had there been no interruption in employment. Employees who serve 91 days or more must be reemployed in the same job the employee would have held had there been no interruption in employment or in a position with the same seniority, status, and pay if the individual is qualified for the position. If an employee is no longer qualified to return to the same or similar position, and, despite reasonable efforts of the employer, cannot become qualified, then the employer can offer a position of lesser pay and status, but with no loss of seniority. Additionally, once a veteran has been re-employed in their job, they cannot be fired for one year, except for cause, regardless of the period of their active duty.
- When must employment and benefits be reinstated to the employee? Under USERRA, employment and benefits must be reinstated if the following conditions are met:
- The employee gave notice to the employer that he/she was leaving to perform service
- The service did not exceed five years (this is subject to a few exceptions)
- The employee had an honorable discharge
- The employee reported back to work within the required time frame (which depends on the length of the employee’s service)
In closing, employers who (1) encounter job applicants who were in the uniformed services, (2) have employees entering the services, or (3) have employees returning from service should ensure that their employment policies and practices adhere to the requirements of USERRA. As always, an experienced employment counsel can help you make sure this is in fact the case!