Uniformed Services
Employment and Reemployment
Rights Act (USERRA)
DOL Information Page
http://www.dol.gov/vets/programs/userra/main.htm
Who is Covered
The
Uniformed Services Employment
and Reemployment Rights
Act (USERRA) was signed
on October 13, 1994.
The Act applies to persons
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
each of these services.
Federal training or
service in the Army
National Guard and Air
National Guard also
gives rise to rights
under USERRA. In addition,
under the Public Health
Security and Bioterrorism
Response Act of 2002,
certain disaster response
work (and authorized
training for such work)
is considered "service
in the uniformed services"
as well. Uniformed
service includes active
duty, active duty for
training, inactive duty
training (such as drills),
initial active duty
training, and funeral
honors duty performed
by National Guard and
reserve members, as
well as the period for
which a person is absent
from a position of employment
for the purpose of an
examination to determine
fitness to perform any
such duty. USERRA
covers nearly all employees,
including part-time
and probationary employees.
USERRA applies to virtually
all U.S. employers,
regardless of size.
Basic Provisions/Requirements
The
pre-service employer
must reemploy service
members returning from
a period of service
in the uniformed services
if those service members
meet five criteria:
- The person
must have held a civilian
job;
- The person
must have given notice
to the employer that
he or she was leaving
the job for service
in the uniformed services,
unless giving notice
was precluded by military
necessity or otherwise
impossible or unreasonable;
- The cumulative
period of service
must not have exceeded
five years;
- The person
must not have been
released from service
under dishonorable
or other punitive
conditions; and
- The person
must have reported
back to the civilian
job in a timely manner
or have submitted
a timely application
for reemployment.
USERRA
establishes a five-year
cumulative total on
military service with
a single employer, with
certain exceptions allowed
for situations such
as call-ups during emergencies,
reserve drills and annually
scheduled active duty
for training. USERRA
also allows an employee
to complete an initial
period of active duty
that exceeds five years
(e.g., enlistees in
the Navy's nuclear power
program are required
to serve six years).
Employee Rights
Under
USERRA, restoration
rights are based on
the duration of military
service rather than
the type of military
duty performed (e.g.,
active duty for training
or inactive duty), except
for fitness-for-service
examinations. The time
limits for returning
to work are as follows:
- Less than
31 days service: By
the beginning of the
first regularly scheduled
work period after
the end of the calendar
day of duty, plus
time required to return
home safely and an
eight hour rest period.
If this is impossible
or unreasonable, then
as soon as possible.
- 31 to 180
days: The employee
must apply for reemployment
no later than 14 days
after completion of
military service.
If this is impossible
or unreasonable through
no fault of the employee,
then as soon as possible.
-
181 days or more:
The employee must
apply for reemployment
no later than 90 days
after completion of
military service.
- Service-connected
injury or illness:
Reporting or application
deadlines are extended
for up to two years
for persons who are
hospitalized or convalescing.
USERRA
guarantees pension plan
benefits that accrued
during military service,
regardless of whether
the plan is a defined
benefit plan or a defined
contribution plan. Also,
USERRA provides health
benefits continuation
for service members
and their families during
military service for
up to 18 months. In
addition, USERRA prohibits
employment discrimination
against a person on
the basis of past military
service, current military
obligations, or an intent
to serve.
Compliance Assistance
Available
The
Veterans' Employment
and Training Service
(VETS) enforces USERRA.
However, the law also
allows an employee to
enforce his or her rights
by filing a court action
directly, without filing
a complaint with VETS. VETS
has published a fact
sheet (OASVET 97-3)
about USERRA. Copies
of this and/or other
VETS' publications,
or answers to questions
about USERRA, may be
obtained from the local
VETS office. The
elaws Uniformed
Services Employment
and Reemployment Rights
Act (USERRA) Advisor
helps veterans understand
employee eligibility
and job entitlements,
employer obligations,
benefits and remedies
under the Act. VETS
has also published a
non-technical USERRA
Guide (.pdf) that
contains general information
about the law. Information
on USERRA and other
VETS programs may be
found on the VETS
Web site.
Penalties/Sanctions
A
court may order an employer
to compensate a prevailing
claimant for lost wages
or benefits. USERRA
allows for liquidated
damages for "willful"
violations.
Relation to State,
Local and Other Federal
Laws
USERRA
does not preempt state
laws providing greater
or additional rights,
but it does preempt
state laws providing
lesser rights or imposing
additional eligibility
criteria. http://www.dol.gov/asp/programs/guide/userra.htm#who
Job Rights for Veterans and Reserve Component Members
The Uniformed
Services Employment
and Reemployment Rights
Act of 1994 (USERRA
38 U.S.C. 4301-4333). The
Department of Labor,
through the Veterans'
Employment and Training
Service (VETS), provides
assistance to all persons
having claims under
USERRA. The
and Reemployment Rights
Act (USERRA) clarifies
and strengthens the
Veterans' Reemployment
Rights (VRR) Statute. USERRA
continues the protection
of civilian job rights
and benefits for veterans
and members of Reserve
components. However,
USERRA makes major improvements
in protecting service
member rights and benefits
by clarifying the law,
improving enforcement
mechanisms, and providing
Federal Government employees
with Department of Labor
assistance in processing
claims. USERRA
expands the cumulative
length of time that
an individual may be
absent from work for
military duty and retain
reemployment rights
to five years (the previous
law provided four years
of active duty, plus
an additional year if
it was for the convenience
of the Government).
There are important
exceptions to the five-year
limit, including initial
enlistments lasting
more than five years,
periodic National Guard
and Reserve training
duty, and involuntary
active duty extensions
and recalls, especially
during a time of national
emergency. USERRA clearly
establishes that reemployment
protection does not
depend on the timing,
frequency, duration,
or nature of an individual's
service as long as the
basic eligibility criteria
are met.
USERRA
provides enhanced protection
for disabled veterans,
requiring employers
to make reasonable efforts
to accommodate the disability.
Service members convalescing
from injuries received
during service or training
may have up to two years
to return to their jobs. USERRA
provides that returning
service-members are
reemployed in the job
that they would have
attained had they not
been absent for military
service (the long-standing
"escalator"
principle), with the
same seniority, status
and pay, as well as
other rights and benefits
determined by seniority.
However, USERRA also
requires that reasonable
efforts (such as training
or retraining) be made
to enable returning
service members to refresh
or upgrade their skills
to help them qualify
for reemployment. The
law clearly provides
for alternative reemployment
positions if the service
member cannot qualify
for the "escalator"
position. USERRA also
reaffirms and clarifies
that while an individual
is performing military
service, he or she is
deemed to be on a furlough
or leave of absence
and is entitled to the
non-seniority rights
accorded other individuals
on non-military leaves
of absence.
Health
and pension plan coverage
for service members
is clarified under USERRA.
Individuals performing
military duty of more
than 30 days may elect
to continue employer
sponsored health care
for up to 18 months;
however, they may be
required to pay up to
102 percent of the full
premium. For military
service of less than
31 days, health care
coverage is provided
as if the service member
had remained employed.
USERRA clarifies pension
plan coverage by making
explicit that all pension
plans are protected. The
period an individual
has to make application
for reemployment or
report back to work
after military service
is now based on time
spent on military duty;
not on the category
of service performed.
For service of less
than 31 days, the service
member must return at
the beginning of the
next regularly scheduled
work period on the first
full day after release
from service, taking
into account safe travel
home plus an eight-hour
rest period. For service
of more than 30 days
but less than 181 days,
the service member must
submit an application
for reemployment within
14 days of release from
service. For service
of more than 180 days,
an application for reemployment
must be submitted within
90 days of release from
service.
USERRA
also requires that service
members provide advance
written or verbal notice
to their employers for
all military duty unless
giving notice is impossible,
unreasonable, or precluded
by military necessity.
Additionally, service
members are able (but
are not required) to
use accrued vacation
or annual leave while
performing military
duty. The
Department of Labor,
through the Veterans'
Employment and Training
Service (VETS) provides
assistance to all persons
having claims under
USERRA, including Federal
and Postal Service employees. If
resolution is unsuccessful
following an investigation,
the service member may
have his or her claim
referred to the Department
of Justice for consideration
of representation in
the appropriate District
Court, at no cost to
the claimant. For the
first time, if violations
under USERRA are shown
to be willful, the court
may award liquidated
damages. Federal and
Postal Service employees
may have their claims
referred to the Office
of Special Counsel for
consideration of representation
before the Merit Systems
Protection Board (MSPB).
Individuals who pursue
their own claims in
court or before the
MSPB may be awarded
reasonable attorney
and expert witness fees
if they prevail. Service
member employees of
intelligence agencies
are provided similar
assistance through the
agency's Inspector General. For
more information about
U.S. Department of Labor
employment and training
programs for veterans,
contact the Veterans'
Employment and Training
Service office nearest
you, listed in the phone
book in the United States
Government under the
Labor Department or
visit our site: http://www.dol.gov/vets/aboutvets/contacts/main.htm,
http://www.dol.gov/vets/programs/userra/userra_fs.htm
A
for Employers and Employees
who participate in the
National Guard and Reserve
http://www.esgr.org/employers2/employerFAQ.asp
ARLINGTON,
VA Mandatory posters
explaining the rights
of employees in the
National Guard and Reserve
under the Uniformed
Services Employment
and Reemployment Rights
Act (USERRA) are now
available from the U.S.
Department of Labor. The
Veterans Benefits Improvement
Act, enacted by Congress
last December, mandates
that employers provide
notice to "all
persons entitled to
rights and benefits
under USERRA."
Employers may meet this
obligation by posting
the notice in a prominent
place where employees
routinely check for
such information. "The
relationship between
the employer and the
Guardsman or Reservist
works best when both
parties are fully aware
of their responsibilities
under USERRA,"
said Bob Hollingsworth,
the Executive Director
of the National Committee
for Employer Support
of the Guard and Reserve
(ESGR). "The Department
of Labors poster is
a major step toward
ensuring that both supervisor
and employee know their
responsibilities." The
poster may be downloaded
from the U.S. Department
of Labors website at
http://www.dol.gov/vets/programs/userra/poster.pdf.
ESGR
was chartered in 1972
and is an information
resource for employers
and members of the National
Guard and Reserve. ESGR
minimizes conflicts
between military duties
and civilian career
responsibilities. Today
almost half of the nation's
military strength resides
in the National Guard
and Reserve. For
more information about
USERRA, ESGR Employer
Outreach Programs or
volunteer opportunities,
please visit our website
at www.esgr.mil
or call 800-336-4590.
On
December 10, 2004, Congress
enacted and President
Bush signed into law
the Veterans' Benefits
Improvement Act of 2004
(VBIA). The VBIA made
two amendments to the
Uniformed Services Employment
and Reemployment Rights
Act (USERRA), which
Congress enacted in
1994 as a complete rewrite
of a law that can be
traced back to 1940. One
VBIA amendment was to
add a new final section
to USERRA. The new section
requires employers to
notify employees of
their USERRA rights,
and it provides that
an employer can meet
this notification requirement
by posting a notice
in the place where employee
notices are customarily
posted, like the employee
break room. The new
section required the
Secretary of Labor to
promulgate the wording
of the required notice
by March 10, 2005, and
the Secretary of Labor
has done this. This
is the notice prescribed
by the Secretary of
Labor. If you are an
employer, you should
post this notice at
your place of business.
You may download a copy
of the USERRA
Notice (Acrobat PDF
format*) from the
Veterans' Employment
and Training Service
of the United States
Department of Labor
web site, or visit http://www.dol.gov/vets/
for more information.
Thank you for your cooperation.
Source:
http://www.esgr.org/employers2/employerFAQ.asp,
http://www.dol.gov/vets/programs/userra/main.htm
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