As a member of the U.S. Armed Forces (individuals in any regular or reserve unit under control of the Secretary of Defense, Army, Navy, or Air Force, or in the Coast Guard), you may be concerned about your rights to employment or re-employment upon completion of your military service. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) makes it illegal for an employer to discriminate against hiring (or rehiring) someone because he or she has been and/or may be obligated to serve within the uniformed services.
Tip: In addition to members of the Armed Forces, USERRA applies to members of the Army or Air National Guard acting under federal authority, the Commissioned Corps of the Public Health Service, and other individuals designated by the U.S. President in time of war or emergency.
USERRA mandates that, as a qualifying service member re-employed with your civilian employer, you're entitled to the same status, seniority rights, and rate of pay you would have achieved had you remained employed continuously with that same employer. This "escalator principle" is a key concept in legislation regulating the re-employment of military service personnel. The law applies to virtually all U.S. employers, large or small.
Re-Employment Eligibility Criteria
Under USERRA, you must meet certain criteria to be eligible for re-employment rights:
- You must give notice that you're leaving your civilian job to perform military service
- The cumulative total of such service cannot exceed 5 years (with some exceptions)
- You must be released from military service under other than dishonorable conditions
- You must return to work within the law's prescribed time limits
To be eligible for re-employment upon completion of military service, you must give advance notice to your employer of your pending service obligation. This notice may be either written or oral, and may be delivered by you or your commanding officer. Of course, it's best to give your employer as much advance notice as possible, and to do so in writing. The only exceptions to this requirement would involve situations where giving notice is either prevented by military necessity or would be unreasonable or impossible to accomplish.
Cumulative Service Limit
To retain USERRA re-employment rights with any one employer, the total cumulative period of service (with some exceptions) that causes you to be absent from work for that employer must be 5 years or less.
Tip: The cumulative limit is only applicable to any one employer. If you change employers, you are given a new 5-year limit with your new employer. If you've been hospitalized for (or are convalescing from) an injury or illness incurred in or aggravated by military service, this 5-year limit may be extended by as much as 2 years.
For purposes of calculating this cumulative total, military service may include:
- Appointments to determine your fitness for duty (e.g., a physical examination)
- Initial periods of active duty for training
- Funeral honors duty
Tip: Required drills and annual training exercises aren't counted toward this 5-year cumulative limit.
Returning To Work
To preserve your USERRA re-employment rights, the length of time you're away from work for military service determines when you must return to work. If the duration of your service obligation is:
- 1-30 days--You must return to work for the next regularly scheduled work period following your release from military duty, travel home, and eight hours of rest
- 31-180 days--You must return to work (or apply for re-employment) within 14 days after your release
- 181+ days--You must apply for re-employment within 90 days after your release
Tip: If you've been hospitalized for (or are convalescing from) an injury or illness incurred in or aggravated by military service, these deadlines may be extended by as much as 2 years. This period may be extended further if circumstances beyond your control make reporting back to work within 2 years unreasonable or impossible.
Caution: If (due to circumstances within your control) you don't return to work or apply for re-employment within these prescribed time limits, you won't forfeit your re-employment rights, but you will become subject to your employer's rules concerning unauthorized absences.
Documenting Your Absence
If you're away from work for more than 31 days, your employer has the right to demand documentation indicating that you've applied for re-employment within the prescribed time limits, that you haven't exceeded the 5-year cumulative service limit, and that your separation from military service was other than dishonorable. If you can't provide this documentation at the time you apply for re-employment, your employer can't deny your application on the basis of incomplete paperwork. However, you may be terminated from your re-employment if documentation later becomes available that indicates you haven't met the re-employment requirements.
Your Entitlements Upon Your Return To Work
USERRA guarantees a number of specific entitlements once you're re-employed. What follows are some of the more important ones.
The "escalator principle" of USERRA guarantees that, upon your re-employment, you'll be given a position with the same status, level of seniority rights, and rate of pay that you would have had had you remained continuously employed with that employer. Your employer must make reasonable efforts to help you refresh or upgrade your skills so that you'll be capable of performing the job you're assigned.
In addition, if you were disabled as a result of your military service (or your service experience aggravated an existing disability), your employer must make reasonable efforts to accommodate your disability. If this training proves unsuccessful, your employer is required to place you in a position that most closely approximates the one you held at the time you left for military service.
Caution: Depending on your former employer's circumstances, the "escalator" can go up or down. Had you not been absent, you might have been promoted. If so, you're entitled to that promotion when you're re-employed. However, it's also possible that you'd still be in your old position or (had there been a reduction in your employer's work force) in a position inferior to the one you held at the time you left for military service. You might even have been laid off. Your employer's circumstances may even have changed to the extent that re-employing you isn't possible.
If you're re-employed and your military service was for 30 days or less, the USERRA doesn't protect you from discharge without cause. If your military service was for 31-180 days, you're protected from discharge (except for cause) for 6 months. You're given similar protection for a year from the date of your re-employment if your military service was for 181 or more days.
Under USERRA, if your employer-provided health coverage would end while you're away from your job to perform military service, you may choose to continue your coverage for up to the first 18 months of your obligation. If your service obligation is for 30 days or less, you'll only have to pay what you'd normally pay for the coverage (if anything) as an employee. For longer periods, you may have to pay up to 102 percent of the total health insurance premium to maintain coverage.
Once you're re-employed, you're entitled to immediate re-instatement of your health coverage without a waiting period or exclusions for pre-existing conditions (unless these would have been required even if you hadn't been absent for military service).
Caution: You may be excluded from coverage for any injury or illness that was incurred in or aggravated during your military service.
Pension And Retirement Plans
USERRA guarantees that the benefits of any qualified pension plan that you participate in (e.g., a defined benefit plan or a defined contribution plan) will continue to accrue during your military service. When you're re-employed:
- Your military service won't be treated as a break in the continuity of your employment.
- You won't forfeit any benefits already accrued. For benefit accrual and vesting purposes, your military service will be treated as service with an employer.
- You won't need to re-qualify for plan participation because you were away performing military service.
- You'll have a period of time equal to three times your period of military service (not to exceed 5 years) in which you may make up any employee contributions you missed making to a contributory plan. The amount you may contribute will be based on the rate of pay you would have received had you been continuously employed.
- You'll receive whatever employer contribution your employer would have made to your plan had you been continuously employed.
Administration and Enforcement
The U.S. Department of Labor administers USERRA through the Veterans' Employment and Training Service (VETS), which investigates and attempts to resolve any complaints that are filed with it. If you file a complaint with VETS (which is an optional procedure) and it's not resolved successfully, you may request to have your complaint reviewed by the Attorney General. If it's reviewed and deemed meritorious, the Attorney General may file a federal court action on your behalf. Whether or not you take any of these actions, you will always have the option to file a legal action privately. If you do so and are successful in your suit, you may be awarded back pay or lost benefits (these may be doubled if the court determines your employer willfully violated the law). The court may also allow an award for your attorney fees and litigation expenses.
This material was prepared by Broadridge Investor Communication Solutions, Inc., and does not necessarily represent the views of The Retirement Group or FSC Financial Corp. This information should not be construed as investment advice. Neither the named Representatives nor Broker/Dealer gives tax or legal advice. All information is believed to be from reliable sources; however, we make no representation as to its completeness or accuracy. The publisher is not engaged in rendering legal, accounting or other professional services. If other expert assistance is needed, the reader is advised to engage the services of a competent professional. Please consult your Financial Advisor for further information or call 800-900-5867.
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