When active-duty personnel return to work: A compliance guide
Employers with active-duty service men and women must follow rules for their return to work. The Uniformed Services Employment and Re-employment Rights Act was written to protect retired military, active-duty personnel and members of the Reserve re-entering the workforce.
The Labor Department oversees the law, which bars employees from terminating or discriminating against service men and women for going out on active duty.
Service members’ protected rights
Under USERRA rules, employers must allow service members to return to the same positions they would have had if they hadn’t been called to active duty. This mandate is called the “escalator principle,” which essentially means service members are entitled to the same pay, seniority and job status they would have been granted before their military started. While on the job, service members might have earned leave or vacation time, but employers can’t force them to take it.
The DOL expects employers to provide service members training or re-training to return to work. Those who aren’t qualified for positions under the “escalator principle” must be considered for the next best comparable job.
Notification of duty
Active-duty personnel must notify their employer that they’ve been called for military service. Notification can be written or verbal, but done so as far ahead of time as possible.
The exemptions are situations that make advance notice unlikely, impossible or unreasonable.
With all the legal protections, service members are essentially being rehired. As such, they can’t have more than five cumulative years with an employer, However, if they enlist for more than five years, have Reserve or National Guard training, have their active duty extended or were recalled for duty, they’re exempt from the five-year rule.
Service members must not have been punished for or dishonorably discharged from military duty. Also, they must apply for re-employment and return to work by a specified date, which are based on the length of service.
For fewer than 31 service days, they don’t have to re-apply for a job, but must return to work on the next official workday following the first day they’re released.
For 31 days of service up to 180 days, they’re required to apply within 14 days of being released. For 181 of service or more, they have 90 days to apply after their release. For post-duty travel for illness, the USERRA will extend the two-week deadline.
Benefits and pensions for service members
Service members receive health benefits through the USERRA. Those with more than 30 days of military duty may select an employer-sponsored health plan for a 24-month period. The premium, however, might be 105 percent of the employer’s group plan. premium.
Service members with fewer than 31 days have continuous coverage during their military leave.
The USERRA also prevents service members from losing their pensions because of the interruption in work.
Service members recuperating from injuries they received during military duty or training have up to two years to return to work or apply for re-employment.
As with the Americans with Disabilities Act, employers must provide “reasonable accommodation” to disabled service members when they return to work. “Reasonable accommodation” could be physical changes to the workplace, specially equipped chairs or ramps.
Unfair treatment or discrimination claims
The DOL investigates claims service members file against employers for unfair treatment or discrimination. The U.S. Justice Department can take over any unresolved claims and rule in a district court at no charge to service members. However, employers found to have violated the law might have to pay service members for damages.
Employers need to make sure they’re complying with all USERRA provisions to avoid costly penalties.