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June 28, 2006
Expert Leads USERRA Boot Camp

By Joan Farrell

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More than half a million members of the National Guard in Reserves have been called to active duty since 9/11 and close to 150,000 are still performing military service. Given these numbers, employers need to know what's required of them under the Uniform Services Employment and Re-employment Rights Act of 1994 (USERRA), said William Schurgin at the 2006 Society of Human Resources Management's Annual Conference in Washington, D.C. Describing the statute as "very broad," Schurgin explained that the law covers all employers, regardless of size, and applies to:

  • Full-time employees
  • Part-time employees
  • Seasonal and temporary employees
  • Probationary employees
  • Applicants for employment

Schurgin noted that if an employee is called up for duty under federal law, USERRA will apply. But if an employee is called up under state law, employers must look to the applicable state law's requirements.

USERRA provides the following rights for members of the uniform services:

  • Anti-discrimination and anti-retaliation
  • Right to serve in uniform services
  • Health coverage and benefits while on military leave
  • Re-employment rights
  • Seniority rights and benefits upon re-employment
  • Re-employment rights for veterans with disabilities
  • Protection against discharge

Most of these rights come into play when an employee takes military leave. Schurgin emphasized that the law does not require employees to use a particular form of notice when advising employers of the need for leave, and employers do not have the right to ask for a copy of an employee's military orders when the employee begins a leave.

There is no requirement to pay employees while they are on military leave, Schurgin said, but when short-term leave of up to 30 days is taken, health insurance must be treated as if employment had continued. After 31 days, health insurance coverage must continue to be offered, but employees may be required to pay 102 percent of the full premium for insurance.

USERRA also provides re-employment rights when an employee returns from military leave. Schurgin noted that there is a maximum of 5 years' cumulative leave that applies only to military leave taken while employed by the current employer. Any military leave taken while working with prior employers is not included in the calculation.

Under a requirement known as the "escalator principle," returning employees are entitled to be reemployed in a position that reflects with reasonable certainty the pay, benefits, seniority, and other job perquisites, that he or she would have attained if not for the period of service. Schurgin pointed out that, unlike the Family and Medical Leave Act, USERRA does not provide an exception to its re-employment requirements for high level executives, so the escalator principle would apply to these employees, too.

Employees who are re-employed are also provided post-reinstatement protection against termination without cause. Those who serve more than 180 days can't be discharged without cause for 12 months after reemployment. Those who serve for 31 to 180 days can't be discharged without cause for 6 months after reemployment. Employees who serve for 30 days or less have no protected period. Schurgin cautioned employers that USERRA prohibits employers from putting reinstated employees back on a probationary period.

When re-employing a disabled veteran, Schurgin said employers should be careful to review the protection offered under USERRA because the rights afforded disabled veterans may be broader than those established under the Americans with Disabilities Act.

Schurgin cautioned employers that USERRA prohibits employers from considering an applicant's military obligations when making hiring decisions; and advised that the U.S. Department of Labor has taken the position that supervisors who engage in behavior that's unlawful under USERRA may be held personally liable for their actions.

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