Law protects reservists'
Americans' willingness to serve their
country is evident in the thousands of workers who also are members of the National
Guard or military reserve.
In response to a crisis or national
need, these folks report for active duty, leaving behind their everyday lives
-- and their jobs.
While their lives
will no doubt be changed by the experience, a 1994 employment law should help
make their eventual return to the civilian workplace as normal as possible.
Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) governs
military leaves of absence. It's designed to ensure that those who serve the United
States can retain their civilian employment and benefits once their military tours
are complete. Much of USERRA's burden falls on employers, but workers need to
make sure they follow the rules and meet their responsibilities to get the law's
Here's what you, as an employee, should do when
you get the call-up to active duty.
size: Are you worried your job won't be around when you get back because
your employer is a small firm? Don't be. Under USERRA every company, large and
small, must follow the regulations to maintain the civilian jobs of reservists.
As soon as you get word you've been activated, let your employer know. USERAA
says workers must give advance notice, but it doesn't have to be in writing. The
law takes into consideration the fluidity of military service, especially in chaotic
times. You cannot be penalized by your boss for not providing advance notice if
your noncompliance was impossible because of call-up timing, unreasonable under
the circumstances or "precluded by military necessity."
employment law specialist Joy Waltemath recommends that you let your boss know
the details of your service as soon as you can. This would include the name of
your unit, ship-out date and a military contact. Even if it's after the fact,
the information will help your employer do what must be done to keep your job
ready for your return.
Length of leave:
Your employer must keep your job available for your return as long as your total
military service while on that job is five years or less. "If you've been
with one employer been for 20 years and took one year to serve in the Gulf War,
you have only four years left," says Waltemath, a legal analyst with CCH
Inc., a national provider of human resources and employment law information.
during military service: You'll trade your civilian pay for whatever military
pay your rank entitles you to. Although some companies do pay reservists the difference
between their regular wages and the military compensation received during routine
training, such largesse is not required by USERRA.
should check with your state officials. All states, the District of Columbia and
Puerto Rico have separate military leave laws. Most of these cover re-employment
issues, but some may also include wage laws. And while USERRA supersedes state
laws that limit or condition military employment rights or benefits, the federal
law does not replace state laws that provide greater rights.
benefits: You cannot be forced to apply your accrued vacation against your
military service. If you choose to do so, that's OK. But your employer cannot
make you use vacation time toward military leave.
benefits: If your firm provides health care to workers, then you can purchase
COBRA-like health benefits once you are called up and serve more than 30 days
of active duty. COBRA, the 1986 Consolidated Omnibus Budget Reconciliation Act,
requires companies to allow former employees and their dependents to pay for continued
insurance coverage for up to 18 months. This is the case even if your employer
is a small company that under other circumstances would not be required to offer
The extended coverage option, however, means
you will have to pay more than when you were on the job because you will pick
up both the employer and employee portions. And, under USERRA, this could be up
to 102 percent of the full premium.
If your active duty is
less than 31 days, your employer-provided health care coverage will remain as
if you were still a civilian employee.
benefits: Once you return to your job, USERRA provides that you be made
a "whole" employee when it comes to your pension. That means your time
on active duty counts toward your retirement plan employment-length requirements,
both for participation and vesting limits. Plus, when you are back on the job
you can add to your 401(k) any amount that you would have contributed if you had
not been called to active duty.
You are entitled to your former job, even if your boss filled it in your absence.
USERRA also requires that the "escalator principle" be applied to your
re-employment. This means that you should get the job that you would have expected
to attain had you not been called to active military duty, with the same seniority,
status and pay, as well as other rights and benefits determined by seniority.
General across-the-board pay raises you would have received also are guaranteed
You might, however, be required to take additional
training to refresh or upgrade skills for re-employment. USERRA also allows you
be given an alternative position if you're unable to qualify for the "escalator"
To ensure that you get full USERRA rehiring protections,
the law requires you make a "timely" re-employment application to your
civilian employer. The timetable is based on your length of active duty:
- Service of one to 30 days. You must report to your employer
by the beginning of the first regularly scheduled workday that would fall eight
hours after you return home. If your job is during nontraditional hours, USERRA
makes exceptions. For example, if you got home at 10 p.m., you're not expected
to be at work 2 1/2 hours later for the 12:30 a.m. shift. But your boss can require
you to report for the 6 a.m. shift the next morning.
of 31 to 180 days. Here you must submit an application for re-employment no
later than 14 days after completing military service.
of 181 or more days. A re-employment request must be submitted no later than
90 days after you return to civilian life.
In all cases,
USERRA notes, "if submission of a timely application is impossible or unreasonable
through no fault of the person, the application must be submitted as soon as possible."
And if you are unable to meet the application deadlines because of injury or illness
suffered during active duty, the deadlines are extended for up to two years.
your boss refuses to rehire you, USERRA places the burden on the employer to prove
why it cannot comply with federal military service employment laws.
U.S. Department of Labor, through the Veterans' Employment and Training Service,
administers USERRA. The Department has a special Web
site that provides time frame specifics and interactive questions for employees
regarding their military service and return to the civilian work force.