Category Personnel/Employment
Title Employees in the Military
Author/s
Preview Employees in the Military - USERRA
Text

Employees in the Military
Updated 2018

Christian Schools are not exempt from USERRA and must comply will all regulations.  Below are some of the highlights regarding USERRA.

Uniformed Services Employment and Reemployment Rights Act (USERRA)
(38 USC §§4301 through 4335)

Who is Covered

The Uniformed Services Employment and Reemployment Rights Act (USERRA) is administered by the Veterans' Employment and Training Service (VETS). USERRA applies to persons who perform duty, voluntarily or involuntarily, in the "uniformed services," which include 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 give 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."

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 employement 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

USERRA Prohibits employment discrimination against a person on the basis of past military service, current military obligations, or intent to serve. An employer must not deny initial employment, reemployment, retention in employment, promotion, or benefit of employment to a person on the basis of past, present, or future service obligation. In addition, an employer must not retaliate against a person because of an action taken to enforce or exercise any USERRA right or for assisting in an USERRA investigation.

The pre-service employer must reemploy servicemembers returning from a period of service in the uniformed services if those servicemembers meed five criteria:

  • The person must have been absent form a civilian job on account of service in the uniformed services;
  • The person must have given advance notice to the employer that he or she was leaving the job for service in the uniformed services, unless such notice was precluded by military necessity or otherwise impossible or unreasonable;
  • The cumulative period of military service with that employer 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 been reported back to the civilian job in a timely manner or have submitted a timely application for reemployment, unless timely reporting back or application was impossible or unreasonable.

USERRA establishes a five-year cumulative total of military service with a single employer, with certain exceptions allowed for situations such as call-ups during emergencies, reserve drills, and annual scheduled active duty for training. USERRA also allows an employee to complete an initial period of active duty that exceeds five years.

Employers are required to provide to persons entitled to the rights and benefits under USERRA a notice of the rights, benefits, and obligations of such persons and such employers under USERRA.

Employee Rights

USERRA provides that returning servicemembers are to be reemployed in the job that they would have attained had they not been absent for military service, (the "escalator" principle), with the same seniority, status and pay, as well as other rights and benefits determined by seniority. USERRA also requires that reasonable efforts (such as training or retraining) be made to enable returning servicemembers to qualify for reemployment. If the servicemember cannot qualify for the "escalator" position, he or she must be reemployed, if qualified, in any other position that is the nearest approximation to the escalator position and then to the pre-service position. USERRA also provides that while an individual is performing military service, he or she is deemed to be on a furlough or leave of absence and is entitles to the non-security rights and benefits accorded to other similarly-situated individuals on non-military leaves of absence. 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 or 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.

Health and pension plan coverage for servicemembers is also addressed by USERRA. Individuals performing military duty of more than 30 days may elect to continue employer sponsored health care for up to 24 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 servicemember had remained employed. USERRA pension protections apply to defined benefit plans and defined contribution plans as well as plans provided under Federal or state laws governing pension benefits for government employees. For purposes of plan participation, vesting, and accrual of benefits, USERRA treats military service as continuous service with the employer.

Notices and Posters

Employers are required to provide to persons covered by USERRA a notice of the rights, benefits, and obligations of the employees and employers under USERRA.  To do this, employers may post the notice entitled "Your Rights Under USERRA" where employer notices are customarily placed, mail it, or by distributing it via electronic mail. There is no size requirement for the poster version of the notice.

This and more information can be found at https://webapps.dol.gov/elaws/elg/userra.htm.   

Notice: This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It has been provided to member schools with the understanding that ACSI is not engaged in rendering legal, accounting, tax, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Laws vary by jurisdiction, and the specific application of laws to particular facts requires the advice of an attorney.  

Association of Christian Schools International
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Phone: 719.528.6906
ACSI.org  

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