Job Protections for Returning Military Personnel

Q: What job protections exist for military reserve and National Guard personnel returning from active duty?

A: With recent events in the Middle East, many reservists and National Guard personnel have been called to active duty. Fortunately, some are beginning to return home. A federal law called the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) provides job protection and prescribes rules that all employers and all reservists and National Guard personnel must follow.

USERRA applies to all employers, regardless of size. It applies to all military personnel who have served and been honorably discharged from the uniformed services and those who currently serve in the Reserves or National Guard. The Act prohibits discrimination by employers because of past, current or future military obligations. Its protection extends to hiring, promotion, reemployment, termination and benefits.

An employee is entitled to reemployment after active duty if (1) the employee has given advance written or verbal notice to the employer, (2) the cumulative absences for military service do not exceed 5 years, and (3) the employee reports back to the employer within a set time after returning from active service. The employer can require reasonable documentation of the employee’s military orders as active duty begins. After military service, the time to report back to the employer depends on the length of active service, varying from 8 hours (when returning from active duty of less than 31 days) to 90 days (when returning from active duty of more than 180 days). If the employee is prevented from reporting to the employer within the required time through no fault of his/her own, the time will be extended.

In general, the employee must be returned to the job position and seniority he/she would have held had the employment not been interrupted by active service. USERRA protects employee benefits. For shorter military absences, employers must continue health insurance on the same terms it does for other employees. For military absences between 31 days and 18 months, the employer may require the employee to pay up to 102% of the full premium under the plan. Pension plan rights and contributions under ERISA plans must continue as if the employee had not been absent for military service. An employee on military leave does not continue to accrue additional vacation or sick time while on leave, unless the employer allows employees on other types of leave to accrue vacation or sick time.

USERRA does not require employers to provide paid leave during military absences. If an employee wishes to use his/her earned vacation or personal time off during his/her military leave, the employer must allow it. However, an employer cannot require the employee to use his/her earned vacation or personal time during military absences.

The spirit of USERRA is to treat the employee engaged in and returning from active military service fairly and to prevent discrimination. The rules of USERRA help both employers and employees know what to do and what to expect.

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