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Online Seminar

<!–:en–>EMPLOYMENT PROTECTIONS FOR VETERANS & THE USERRA<!–:–><!–:ja–>退役軍人のための雇用保護およびUSERRA<!–:–>

October 25, 2011

With Veterans Day behind us only one month ago along with the fact that we’ve got hundreds of thousands of new veterans since 2001 and about 45,000 troops will be returning from Iraq by the end of the year, we thought it would be a good idea to educate our readers with a short review of the Uniformed Services Employment and Reemployment Rights Act (USERRA) Act which provides benefits and employment protections to veterans.

USERRA is one of the most far-reaching labor laws in terms of employer obligations and employee protections. It applies to all employers, regardless of size, and covers virtually all types of employees. Those who take leave for military service enjoy expansive reemployment rights, as well as pay and benefit protections. In addition, USERRA’s protections against discrimination and retaliation apply not only to applicants and employees who are joining the uniformed services or fulfilling service obligations, but also to those who take action to enforce the law’s provisions or participate in a USERRA-related investigation or proceeding.

The laws protecting veterans returning from active military service go back to 1940 with the Veterans’ Reemployment Rights law (VRR). This legislation provided reemployment rights to those who left civilian jobs to serve in the military. Although the VRR had been under review a number of times since its enactment, except for legislation in 1974 that gave some protection (VEVRAA) to returning Vietnam Era veterans, there weren’t many changes to veteran protection laws until the first Gulf War began when President George H.W. Bush ordered the first large scale call-up for reservists since the Korean War. A substantial mobilization of 228,000 reservists created a need to update the VRR. Thus, on October 13, 1994, President Clinton signed USERRA into law and it became effective on December 12, 1994. After this, USERRA has been amended several times including in 1996, 1998, 2000, 2004, and 2008.

The basic idea of USERRA, like the VRR law, is that if an employee leaves their civilian job for service in the uniformed services, they are considered “on leave” and are entitled to return to the job, with accrued seniority, provided that you meet the law’s eligibility criteria. Like the VRR law, USERRA applies to voluntary as well as involuntary service in peacetime as well as wartime, and the law applies to virtually all civilian employers, including federal, state and local governments and private employers regardless of size. Also, USERRA does not require employers to pay for military leave.

Under USERRA, employees who are actively enlisted in any U.S. military branch can take military leave for as long as the military requires.USERRA requires all employers to reinstate employees to the same or similar position upon the employee’s return from military leave, with no loss of seniority.

Employment and benefits can be reinstated if the following conditions are met:

  1. The employee or an officer of the service provides advance written or verbal notice,
  2. The cumulative duration of all military leave is less than 5 years, and
  3. The employee applies for reemployment within a specific time frame.

An employee must give notice of his/her intention to return to work to an employer upon returning from military leave with specified time limits:

  1. If military leave is 30 days or less, employees must report to work the next work period following the end of service plus an additional eight hours;
  2. If military leave for 31 days to 180 days, the employee is required to reapply either within 14 days after the end of service or the following full workday if submission within 14 days is impossible through no fault of the employee;
  3. If military leave for 181 days or more, the employee must apply within 90 days following the end of service;
  4. If military leave is to serve funeral honors duty, employees can take authorized leave to perform funeral duties and are not subject to specific requirements for reporting to work or reapplying for employment.
  5. Employees who are hospitalized or recovering from injuries received during uniformed service have up to two additional years to apply for reinstatement.
  6. Employees who serve 90 or fewer days are entitled to return to the same job they would have held had there been no interruption in employment. Employees who serve 91 days or more must be reemployed in the same job the employee would have held had there been no interruption in employment or in a position with the same seniority, status, and pay if the individual is qualified for the position.

If an employee is not qualified to return to the same or similar position, and cannot become qualified with reasonable efforts of the employer, the employer can offer a position of lesser pay and status, but with no loss of seniority.

USERRA applies to all employers and all employees, except for temporary workers. In addition, many states have laws that provide protections above and beyond the protections provided by USERRA. So, you should check state military leave regulations as well.

Employers cannot refuse to allow employees to take military leave, nor can they control when or for how long employees can take leave.Employers cannot discriminate against individuals because of their participation in uniformed services. Employees returning from military leave are entitled to return to the same or similar job they would have held without the leave, and are generally entitled to the same wages, benefits, and seniority that they would have otherwise received. In addition, once a veteran has been re-employed in their job, they cannot be fired for one year, except for cause, regardless of the period of their active duty. USERRA requires employers to “promptly re-employ” an eligible returning veteran in an “appropriate position.” In most cases this must occur within two weeks of the veteran reporting back to work.

In addition, The Veterans’ Benefits Improvement Act, enacted by Congress in 2004, requires all employers to provide a notice of rights under USERRA to all persons entitled to military leave of absence rights and benefits. Virtually anyone who has been absent from work due to “service in the uniformed services” is protected by these laws. Military service includes: initial duty for training (e.g. basic training), inactive duty training (e.g. weekend type training), active duty training (the typical two-week summer camp training), and actual military service (active duty). 10.25.2011.