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Law protects reservists' jobs

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.

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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.

The 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 full protection.

Here's what you, as an employee, should do when you get the call-up to active duty.

Company 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.

Notification: 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."

But 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.

Pay 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.

You also 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.

Vacation 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.

Health 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 COBRA coverage.

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.

Pension 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.

Re-employment: 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 under USERRA.

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" position.

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.
  • Service of 31 to 180 days. Here you must submit an application for re-employment no later than 14 days after completing military service.
  • 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.

If 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.

The 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.

 
-- Updated: March 18, 2003
   

 

 
 

 

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