Employee Rights Under the Uniformed Services Employment and Reemployment Rights Act
President Bush’s announcement that as many as 50,000 members of the National Guard and Reserves may be called up in the wake of terrorist attacks on the World Trade Center and the Pentagon is prompting the Labor Department to ramp up efforts to inform employees and employers that jobs and benefits are protected in such situations.
These protections are mandated by the Uniformed Services Employment and Reemployment Rights Act (“USSERA”) – a 1994 law that strengthened employment discrimination prohibitions and the rights of employees who leave civilian jobs for military service. Enforced by DOL’s Veterans’ Employment and Training Service, the law requires that service members, reservists, and National Guard members returning to civilian employment after a period of active duty must be re-employed in the same jobs or similar ones with the status, pay, and benefits they would have attained had they not been absent for military service. The law also protects pension rights and health benefits.
Unlike many other federal employment related law, USSERA has no minimum number of employees requirement in order for there to be coverage. Thus, even the smallest of employers are subject to the law.
Leave must be afforded to employees who are called to duty in any of the uniformed services. Uniformed services include not only the “traditional” Armed Forces (Army, Navy, Air Force and Marines), but also the Army National Guard, full-time National Guard duty, the commissioned corps of the Public Health Service, and any other category of people designated by the president in time of war or national emergency. The act requires that all employees provide advance notice of their military service obligations unless it would be impossible or unreasonable to do so. This notice may be oral or in writing and may be provided by the employee or by an officer of the military branch in which the employee is serving.
With certain exceptions, the cumulative length of an employee’s military leave of absence from employment may not exceed five years. If an employee’s military service is less than 31 days, the employee must report for re-employment at the beginning of the regularly scheduled workday that would fall eight hours after he or she returns home from duty. If the period of time is greater than 31 days, but less than 180 days, the employee must submit a reinstatement application to his or her employer no later than 14 days following completion of service. If the tour of duty is greater than 180 days, the employee must submit an application to his or her employer no later than 90 days after completion of military service.
The act also provides for an extension of these time limits for up to two years if an employee is hospitalized or convalescing from a service-related illness or injury. A provision in USERRA not contained in previous legislation allows a departing employee a “COBRA-like” right to elect continued employer-provided health insurance coverage for the employee/recalled service person and his/her family during the period of call-up, not to exceed 18 months.
It is important to remember that employees returning from military leave are entitled to the seniority and other rights and benefits determined by seniority that they would have attained with reasonable certainty had they not been called to active duty. In effect, employees covered by USSERA do not step off the escalator while on active duty, returning to work where they left off. Rather, employees called to active duty under USSERA, in effect, remain on the escalator while in military service, as if they had never left. While the activated employee does not get paid by his/her employer while on leave, and does not receive paid holidays while on leave, the employee's length of service for pay increases or vacation, etc. upon return, accumulates while on leave, as if the called-up employee were still at work.
Employers with specific questions concerning re-employment and other rights of veterans, reservists, and Guard members affected by the recent call-up are urged to consult with counsel.