|
|
 |
| PROTECTIONS AFFORDED EMPLOYEES IN THE UNIFORMED SERVICES UPON RETURN FROM DUTY |
 |
By Janis E. Susalla Foley and Janelle Schaller Spring 2005
A growing number of employees need leave time or are returning from service in the Army, Navy, Air Force, Marines and other uniformed services. Whether they are volunteers or they are reservists being called to active duty to serve in our country or around the world, they have a number of legal rights that employers should know about. The Uniformed Services Employment and Reemployment Rights Act (USERRA) was enacted in 1994.
USERRA applies to all employers, both large and small, public and private. The Uniformed Services includes not only the 4 main branches of the United States armed forces but also the National Guard when engaged in active or inactive duty training or full-time duty, and the commissioned corps of the Public Health Service. Ohio has adopted USERRA and includes the Ohio organized militia in its definition of uniformed services.
This law prohibits discrimination against members of the uniformed services. In some circumstances, employees absent due to uniformed services may elect to continue health insurance coverage for the period of their service. For purposes of pension benefit plans and seniority systems, employees on uniformed services leave may not be treated as having a break in service to the employer.
USERRA requires employers to reemploy returning uniformed service members. To be reemployed, the employee must not have been cumulatively absent for uniformed service for more than 5 years (with certain exceptions), and the employee must file an appropriate application for reemployment with the employer.
There are instances where USERRA recognizes that reemployment may not be possible. The employer must be able to prove that one of the following exceptions applies:
- if the employer’s business situation has changed so that reemploying the individual would be unreasonable or present an undue hardship, the employer may decline reemployment; or
- if the employment was a short term position that was not expected to continue indefinitely or significantly into the future, the employer may decline reemployment.
Employers who fail to comply with USERRA may face a complaint filed with the U.S. Dept. of Labor.
There is also a new employer posting requirement under USERRA, thanks to the Veterans Benefits Improvement Act. Employers must post the notice of USRERA rights where they customarily post notices for employees.
For more information, see 38 CFR ch. 43 and 38 USC § 4334.
< Return to News and Events
|
|
