Know Your USERRA Obligations to Military Personnel and National Disaster Medical System members

08/20/08

The nation has, in recent years, conducted the largest mobilization of military personnel since World War II. Under federal law, you as an employer have certain obligations to members of the armed forces. Read on and discover many of your obligations to service members under the Uniformed Services Employment and Reemployment Rights Act.

The Department of Labor recently issued new regulations to explain and clarify the Uniformed Services Employment and Reemployment Rights Act (USERRA). This is the latest in a series of measures to ensure job security for military personnel and National Disaster Medical System members.

USERRA applies to employees who perform duty, voluntarily or involuntarily, in the “uniformed services,” which include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service Commissioned Corps, as well as the reserve components of these services. USERRA rights also extend to National Disaster Medical System members.

Here is a summary of your rights and obligations under the law:

• You may not discriminate against members of the Reserve component of the Armed Forces of the United States on the basis of their military affiliation.

• You must grant military leave upon request. Conversely, the service member must notify his or her employer to request military leave, in advance, unless to do so would be impractical or would violate operational security.

• You must reemploy the service member when he or she returns from active duty for periods of not more than five years, unless to do so would cause an undue burden on the business, or the job no longer exists. Some circumstances could cause USERRA protection to extend beyond five years.

• If the service member is no longer qualified for the job due to his or her military leave, you must provide retraining.

• Employers must notify all employees of their rights under USERRA.

The elevator principle

When a service member returns from active duty for a period of five years or less, that individual is entitled to any increases in seniority, promotions, pay and benefits that would have been received had he or she never left – a legal concept known as the “elevator principle.” In other words, service member, do not re-enter their civilian career, at the level they left for active duty, but at the level they would have attained had they never “gotten off the elevator.”

Important: When a service member returns from active duty, he or she is no longer an “at-will” employee – regardless of what company policy may say. Generally, returning reservists and guardsmen may not be fired without cause for a period of up to one year after reinstatement. The exact time depends on how long the employee was absent for military duty.State law considerations

Most states have parallel laws that provide similar protections to National Guardsmen mobilized on state orders. This is generally the case with mobilizations for disaster relief within the state, and for certain schooling, administrative and training events in the service of the state, rather than the federal government. Annual training is done on federal orders, even for Guard members. If your governing state law provides greater protection to service members than USERRA, you must abide by state law.

This is just a partial list of USERRA considerations you must be aware of. G.Neil’s USERRA Comprehensive Guide offers compliance tips and checklists, sample forms for leave request and reinstatement, and other information. Our Federal Easy-Post also satisfies the Department of Labor’s USERRA notification requirements and includes all federally mandated posting requirements.