In the introduction to our first USERRA post we noted that “[s]upporting documentation comes at the end of the leave, not the beginning.” USERRA has no provision requiring the servicemember to provide the employer a copy … 1 But a service member can single-handedly defeat ISIS and still forfeit his rights under USERRA if he doesn’t timely and adequately report back to work. USERRA also applies to foreign employers doing business in the United States. There is no exclusion for executive, managerial or professional employees. Liability under a multi-employer plan for employer contributions and benefits in connection with USERRA’s health plan provisions must be allocated either as the plan sponsor provides or, if the sponsor does not provide, to the employee’s last employer before his or her service. Does USERRA protect against discrimination in initial hiring decisions? you return to work or apply for reemployment in a timely manner after conclusion of service; and you have not been separated from service with a disqualifying discharge or under other than honorable conditions. Under USERRA, upon returning to work, an employee is entitled to all seniority rights and benefits (1) that he had on the date that he left for service, and (2) that he would have attained if the employee had remained continuously employed. The appearance of hyperlinks does not constitute endorsement by the Department of Defense of non-U.S. Government sites or the information, products, or services contained therein. 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 180 days after the employee’s date of reemployment if his or her most recent period of uniformed service was more than 30 days but less than 181 days; or for one year after the date of reemployment if the employee’s most recent period of uniformed service was more than 180 days. What are the basic eligibility requirements for job protection under USERRA? USERRA is a federal law that protects the employment and job rights of military members who leave their civilian jobs to perform military service. USERRA entitles most returning service members to reemployment after a period of service. For example, if the individual has been denied initial employment because of his or her obligations as a member of the National Guard or reserve, the company or entity denying employment is an employer for purposes of USERRA. You must initial all applicable blocks to indicate your elections and confirm that you read and understand your options/conditions. Your rights under USERRA. Under the act, an employer need not actually employ an individual to be his or her “employer,” if initial employment was denied on the basis of the individual’s military affiliation, application for membership, performance of service, application for service, or obligation for service in the uniformed services. This position is known as the escalator position. USERRA The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted to ensure that members of the uniformed services are entitled to return to their civilian employment upon completion of their service. “Prompt reemployment” means as soon as practicable under the circumstances of each case. What do I need to do while my employee is on military leave? 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. USERRA and parole withholdings on return to work Question/Advice Hey, I have a friend that's in the Texas Guard that just got off orders and when he returned to is civilian employment they withheld 100% of his paycheck to pay his dental/vision coverage while he was gone. The timeframe depends on how long the service member has been absent: Such links are provided consistent with the stated purpose of this website. USERRA also applies to persons serving in the active components of the armed forces “upon release from active duty. In this status, the employee is entitled to the non-seniority rights and benefits generally provided by the employer to other employees with similar seniority, status and pay that are on furlough or leave of absence. Which employers are covered by USERRA? On reemployment, the employee is treated as not having a break in service with the employer or employers maintaining a pension plan, for purposes of participation, vesting and accrual of benefits, by reason of the period of absence from employment due to or necessitated by service in the uniformed services. USERRA is a federal statute that protects servicemembers’ and veterans’ civilian employment rights. USERRA’s definition of “service in the uniformed services” covers all categories of military training and service, most often understood as applying to National Guard and reserve military personnel. The employee may be discharged for cause based either on conduct or, in some circumstances, because of the application of other legitimate nondiscriminatory reasons. ESGR provides a breakdown of USERRA’s clauses to help you understand the limitations, exceptions and details of its coverage. Entitlement to these non-seniority rights and benefits is not dependent on how the employer characterizes the employee’s status during a period of service. No. No single one of these factors is controlling, but all are relevant to determining whether an individual is an employee or an independent contractor. Learn about USERRA and how it helps veterans return to civilian life. In a non-contributory defined benefit plan, where the amount of the pension benefit is determined according to a specific formula, the employee’s benefit will be the same as though he or she had remained continuously employed make up contributions in order to have the same benefit as if he or she had remained continuously employed during the period of service. In the introduction to our first USERRA post we noted that “[s]upporting documentation comes at the end of the leave, not the beginning.” USERRA has no provision requiring the servicemember to provide the employer a copy of military orders or other proof of upcoming service. 10 After a period of training or service lasting fewer than 31 continuous days, you must report back to work at the start of the first regularly scheduled work period on the first calendar day after release from the period of service, the time reasonably required for safe transportation from the place of service to your residence, and the USERRA does not prohibit lawful adverse job consequences that result from the employee’s restoration on the seniority ladder. 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. The employee is not required to ask for or get his or her employer’s permission to leave to perform military service. Although the Department of Defense may or may not use these sites as additional distribution channels for Department of Defense information, it does not exercise editorial control over all of the information that you may find at these locations. You can also contact us if you have any questions. Interest Rate Cap . 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. You have not been separated from service with a disqualifying discharge or under other than honorable conditions. )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 Returning from military deployment. If the employee is not qualified for reemployment in the escalator position because of a disability after reasonable efforts by the employer to accommodate the disability and to help the employee to become qualified, the employee must be reemployed in a position according to the following priority. Although USERRA initially received little attention, it has gained new prominence When you return to the civilian world, will you have to search for a new job? Whether the service the individual performs is an integral part of the employer’s business. Yes. USERRA is a broad pro-employee statute that provides certain employment rights to active and reserve military personnel called to active duty. They also include those rights and benefits that become effective during the employee’s period of service and that are provided to similarly situated employees on furlough or leave of absence. Yes. Reemployment rights are terminated if the employee is: A commissioned officer dismissed by sentence of a general court-martial; in commutation of a sentence of a general court-martial; or, in time of war, by order of the president; A commissioned officer dropped from the rolls due to absence without authority for at least three months; separation by reason of a sentence to confinement adjudged by a court-martial; or a sentence to confinement in a federal or state penitentiary or correctional institution. 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. What criteria must the employee meet to be eligible under USERRA for reemployment after military service? No. You are about to leave the Military OneSource site. The employee is permitted but not required to identify a particular reemployment position in which he or she is interested. USERRA and is eligible to receive retirement service credits and plan contributions upon returning to work. The reemployment position includes the seniority, status and rate of pay that an employee would ordinarily have attained in that position given his or her job history, including prospects for future earnings and advancement. What are the guidelines USERRA provides for the employee to return to work after completion of military service? Neither USERRA nor any other federal statute gives you the right to insist that a civilian employer reinstate you when you return from a period of FEMA reservist duty. The employer must promptly reemploy the employee when he or she returns from a period of service if the employee meets USERRA’s eligibility criteria. USERRA calls the notification to return to work an application for reemployment. If the employee’s most recent period of service in the military was more than 30 days, he or she must not be discharged except for cause. The employee is only required to give the employer notice of pending service. USERRA Summary. If the last employer is no longer functional, liability for continuing coverage is allocated to the health plan. However, the returning service member does not have to go through an application process, Notification, even verbal notification, from the service member to the employer is a sufficient application for reemployment. Yes. 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. 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. 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.”. The employee may apply verbally or in writing to the pre-service employer or to an agent or representative of the employer who has apparent responsibility for receiving employment applications. You are about to leave the Military OneSource site. USERRA applies to foreign employers doing business in the United States and American companies operating in foreign countries, unless compliance would violate the law of the foreign country in which the workplace is located. To be eligible for protection under USERRA, the service member must report back to work or apply for reemployment within the following guidelines: 1-30 days of service: Report next scheduled workday 31-180 days of service: Apply within 14 days completion of service After completion of weekend drill, what is the time limit for an employee to return to work? Upon an employee’s return from service in the uniformed services as defined by USERRA (20 CFR §1002.6; see also Government Code §31649), the employee may be able to purchase retirement service credit that would have been earned had the employee not been absent. Independent contractors are not protected by USERRA. 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. Learn about the ombudsman services we provide, For USERRA inquiries, contact the ESGR customer service center at 1-800-336-4590 or submit a request for assistance at the following link: Contact ESGR. 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. Read on for answers to the most common questions about employment rights and how to manage your National Guard career without jeopardizing your job. The employee has not exceeded the total time limit, currently five years, on the duration of service; The employee’s separation or dismissal from service was not disqualifying. USERRA regulations provide that an “appropriate officer” can give notice on the employee’s behalf. The Uniformed Services Employment and Reemployment Rights Act provides that an employer must give you time off to perform military service and reemploy you following the service with status, seniority and rate of pay as though you never left. Q4) If an OPSRP member returns to work following a USERRA-qualified period of military service and either resigns or is again recalled to active service, is the employer obligated to complete OPSRP Pension Program employer contributions for that USERRA-qualified period of service? No. In deciding whether an individual is an independent contractor, the following factors need to be considered: No single one of these factors is controlling, but all are relevant to determining whether an individual is an employee or an independent contractor. Depending on the circumstances, the escalator principle may cause an employee to be seniority or job classification would have resulted in the employee being laid off during the period of service, and the layoff continued after the date of reemployment, reemployment would reinstate the employee to layoff status. The employee, or an appropriate officer of the uniformed service in which his or her service is to be performed, must notify the employer that the employee intends to leave the employment position to perform military service. These time limits for returning to work depend (with the exception of fitness-for-service examinations) on the duration of a person’s 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. Service members convalescing from injuries received during service or training may have up to two years from the date of completion of service to return to their jobs or apply for reemployment. You can use this form to notify your employer that you will be returning to work after being absent from work due to active duty service. Why is this a favorite of mine? These rights and benefits include those that are provided for the employee by the employer and by law. Making USERRA apply to folks like you would require a statutory amendment. Yes. To qualify for USERRA’s protections, a service member must be available to return to work within certain time limits. If the employee submits an application for reemployment after a period of service of more than 30 days, he or she must, upon the request of the employer, provide documentation to establish that: Documents that satisfy the requirements of USERRA include the following: The types of documents that are necessary to establish eligibility for reemployment will vary from case to case. 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. A foreign employer that has a physical location or branch in the United States (including U.S. territories and possessions) must comply with USERRA for any of its employees who are employed in the United States. USERRA provides robust reemployment rights and protections for employees who return to work from uniformed service leave. If, based on the application of other legitimate nondiscriminatory reasons, the employee’s job position is eliminated, or the employee is placed on layoff status, either of these situations would constitute cause for purposes of USERRA. If an employee does not give you advance notice of their absence, you do not have to follow the USERRA military leave policy. The last option available would be to hire a private attorney. USERRA 102 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. Among other things, under certain conditions, USERRA requires employers to put individuals back to work in their civilian jobs after military service. Learn about USERRA and how it helps veterans return to civilian life. 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