USERRA- What it is and How to Comply - American Society of Employers - Lauren Cromie

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USERRA- What it is and How to Comply

USERRA is the Uniformed Services Employment and Reemployment Rights Act. It is a federal law that establishes rights and responsibilities for members of the National Guard and Reserve and their civilian employers. The Department of Labor (DOL) is in charge of investigating USERRA violations, and it covers all public and private employers, regardless of size. It can also cover multiple employers for one service member.

USERRA is involved in every stage of the employee lifecycle. It affects recruitment, retention, promotion, reemployment, and employee benefits. The main points of the law state that an employee is allowed five years maximum leave per employer to perform military service. They must be allowed to continue their health care benefits for themselves and their dependents throughout their time on military leave (or for at least 24 months). They must be allowed to take any vacation but must not be forced to take any accrued PTO while performing military duties. They must be allowed the same job they had before they left, including any likely promotions they would’ve received during their time on leave. They must also receive any bonuses and pay raises they would have been given while they were gone.

Employers must notify employees of their rights through USERRA, and employees must also provide documentation in advance notice of military service orders. The Federal Court has ruled that leave due to military service should be treated the same as leave policies for other absences like Jury Duty or Sick Leave. Employers may be required to pay employees for military leave depending on their other paid leave policies. Due to the similarity in nature of the duration of the leave (a few days to a few weeks), the purpose of the leave (to serve a civic duty), and lastly that employee’s typically do not have control over when they can take this leave, the ruling has favored that the employer must treat the military leave according to the policies already in place for other leaves of absence.

The employers’ policy will determine the pay the employee will receive while gone. Employers must also make sure to follow the guidelines for returning to work after taking leave to perform military duties. The recommendations are as follows: 1-30 days of service, an employee can return to work on the next scheduled workday and after at least 8 hours of rest. 31- 180 days of service an employee must apply for reemployment within 14 days after completing service. 181+ days, an employee must apply for reemployment within 90 days after completing service. Another thing to note as an employer is that you cannot discriminate based on military status and deny initial employment, reemployment, promotions, employee benefits and retaliate if an employee files a USERRA violation claim.

There are a couple of reasons where an employer would not be required to reemploy a service member at their current job and seniority. First is if they give verbal or written acknowledgement stating they are not planning to return to the job after their military service and are forfeiting their USERRA rights. Second is if their reemployment is impossible and unreasonable due to a change in circumstances. Third is if the accommodations and training necessary for reemployment would cause an undue hardship on the employer and lastly, if the employee’s employment was only for a brief non-recurrent period where there was no reasonable expectation of continued employment.

Employers need to be informed on employment law and compliance for several purposes but there are specific reasons to pay attention to USERRA in particular. For example, it does not have a statute of limitations. Meaning an employee can file a lawsuit against the employer years after the alleged violations. This can mean costs in owed backpay, unavailability of documents, and difficulty getting witnesses. USERRA claims also move at a faster pace in the court system because they are not required to go through any gatekeeping agencies. Lastly, USERRA violations will put your organization’s reputation at risk. It is not good for your public image or hiring tactics either.

The USERRA law can be daunting as it is very different than other discrimination laws and has many different parts that affect the employee and the employer. Even though an investigation from the DOL seems unlikely, it is still best to be prepared on your rights as an employer and the rights of your employees who are military service members so we can do our best to stay compliant and still support them.

 

Sources:

Meyer, E. B. (2024, May 22). If your company handles military leave for employees this way, you may be doing it all wrong. Lexology. https://www.lexology.com/library/detail.aspx?g=038621c5-8b91-4d8d-b85f-0e4301a400ec&utm_source=Lexology%2BDaily%2BNewsfeed&utm_medium=HTML%2Bemail%2B-%2BBody%2B-%2BGeneral%2Bsection&utm_campaign=Lexology%2Bsubscriber%2Bdaily%2Bfeed&utm_content=Lexology%2BDaily%2BNewsfeed%2B2024-05-24&utm_term=

USERRA. DOL. (n.d.). https://www.dol.gov/agencies/vets/programs/userra/USERRA-Pocket-Guide#ch23

USERRA. Employer Support of the Guard and Reserve. (n.d.). https://www.esgr.mil/USERRA/USERRA-for-Employers

CCH- HR Compliance Library: Expert Guidance: Top 10 Reasons Employers Should Pay Attention to USERRA

Zywave-HR Compliance Overview- Uniformed Services Employment & Reemployment Rights Act (USERRA)

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