By David Allen, Snelling.com
The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is intended to ensure that persons who serve or have served in the Armed Forces, Reserves, National Guard or other “uniformed services” are allowed to seamlessly return to civilian employment.
This law is not about finding veterans new civilian jobs, but about providing that returning service members are reemployed in the job that they would have attained had they not been called away for military service, with the same
- Benefits (to a certain degree)
Returning veterans, who are eligible for USERRA “protection”, must have had 5 or less cumulative service years (with some exceptions) in the “uniformed services” while with a particular employee.
As an employer, you have certain obligations. These include:
- Placing the employee on a military (or other appropriate) leave of absence if you received appropriate verbal or written notice. The USERRA does not require an employer continue paying the employee’s salary; however, you are free to do so. You are also able to pay out vacation or other similar leave accruals, if the employee requests it.
- Promptly reemploying the person if they returned to work in accordance with USERRA guidelines, unless
- Changes occurred in the business that mean that reemploying the person would be impossible or unreasonable (for example, layoffs occurred that would have included the individual).
- Undue hardships would be incurred
- The job was for a “brief and nonrecurrent period” and could not reasonably be expected to continue indefinitely or for a significant period.
NOTE: You, as the employer, have the burden of proving (not simply asserting) unreasonableness, undue hardship, or the brief, nonrecurrent nature of the employment
- Employers must provide entitled employees notice of the rights, benefits and obligations – this can be met by posting the USERRA Poster where the employer “customarily place notices for employees”.
The Issue of Prompt Reemployment
The amount of time that a person has to request reemployment depends on the amount of time spent on military duty. Generally speaking, she must request reemployment by the beginning of the “next regularly scheduled work period”, if her military duty lasted less than 31 days. She has approximately 14 days if her military duty lasted between 31 and 180 days; she has 90 days, if her military duty lasted more than 180 days.
No paperwork? No excuse
All veterans, upon release, are provided with documentation that establishes that their application is timely, that they have not exceeded service limitations and that their release from service was not due to dishonorable discharge, etc.
However, the employer may not use a lack of this documentation to deny or delay reemployment. If documentation received later shows that he was not eligible for reemployment, then he may be terminated.
Most employers want to do the right thing by hiring back returning veterans, but there is a lot of uncertainty around the compliance issues of USERRA. Noncompliance can lead to liquidated damages.
This blog is meant to be a high-level overview of USERRA; it cannot be a definitive USERRA guide. That blog would be quadruple the size of this. However, if you like more information on the nuances of USERRA and your obligations as an employer, look to Snelling. We are versed in employment law, and we are heavily involved in veterans’ issues.
Snelling can lighten your load and ensure that you stay within compliance. Register at our website today, or locate your nearest Snelling office where our knowledgeable staff can assist you in all your workforce planning needs.
NOTE: A downloadable, full-color PDF is available.