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Shirt Tales - April 2008

April 2008 -- What is USERRA and Who Does it Affect?
By Senior Master Sgt. Michael Edmiston
First Sergeant
Why should an employer hire or retain a person who is a member of the National Guard or Reserves? Inevitably, the employer will be concerned the employee may be mobilized and leave; and the employee worries if their job will be there when they return. As members of the military most of us have experienced the stress related to being called to duty. I have found most problems result from poor communication and from a lack of familiarization with the rights and responsibilities of each of us as defined by law.
Congress provided clear protection for all members of the uniformed services, with passage of the Uniformed Services Employment and Reemployment Rights Act (USERRA). Chapter 43 of Title 38, U.S. Code 4301- 4333 protects both the employer and employee. The law is extensive and specific; this article is intended to clarify the most commonly misunderstood areas of the law.
USERRA states that an individual is required to give written or verbal notice to their employer prior to departure for military service. It also establishes time limits for reporting back to work, based on the length of time in the uniformed service, rather than on the type of service, and requiring documentation of such service, if available. Following a period of service of 31 days or more, the employee must be prepared to provide documentation to the employer which establishes that their application for reemployment was timely; have not exceeded the cumulative 5-year limit; and, the character of service was "honorable" (i.e., did not receive a punitive type of discharge). If the documentation is not readily available, or doesn't exist, the employer can not deny reemployment, but if documentation later becomes available that shows they did not qualify for reemployment, the employee may immediately be terminated. Suggested forms of documentation could include a DD-214, endorsed orders, or a letter from their command.
The act seeks to ensure that members of the uniformed services are entitled to return to their civilian employment upon completion of their service. They should be reinstated with the seniority, status, and rate of pay they would have obtained had they remained continuously employed by their civilian employer.
An employee no longer requests permission to be absent for military leave but rather provides notification of pending military service. There is no longer any differentiation between voluntary and involuntary service. An employee cannot be required to use earned vacation or similar leave days for military leave of absence. Vacation is not accrued during a period of military service unless the employer provides this as a benefit.
The law also protects individuals from discrimination in hiring, promotion, and retention on the basis of present and future membership in the armed services. Reasonable efforts must be made to enable returning employees to refresh or upgrade their skills to enable them to qualify for reemployment. If refresher training is not successful, USERRA provides that the employee must be reinstated in a position that most nearly approximates that position originally held. Employees who are disabled (temporarily or permanently) due to military service must also be accommodated in a position most nearly approximating the original position.
USERRA applies to all employers in the United States, regardless of the size of their business. It protects part-time positions, unless the employment is for a brief, non-recurring period and is not expected to last indefinitely or for a significant period. USERRA does not protect independent contractors and others considered to be self-employed.
USERRA clearly establishes that reemployment protection does not depend on the timing, frequency, duration, or nature of an individual's service. USERRA clarifies that while an individual is performing military service, he or she is deemed to be on a furlough or leave of absence and is entitled to the non-seniority rights accorded other individuals on nonmilitary leaves of absence.
Today we are fighting a war with an all volunteer force, comprised of over 47 percent National Guard and Reserve personnel. People of all demographics are joining the military for many different reasons. The time may come when an employer has the opportunity to hire a person who is in the military or have an employee join the military. It is both the employer's and employee's responsibility to properly communicate and to have a complete understanding of the Uniformed Services Employment and Reemployment Rights Act (USERRA), Chapter 43 of Title 38, U.S. Code 4301- 4333.
For more information regarding USERRA, visit www.esgr.org/userra.asp.