Military Call-Up Prompts Focus on USERRA: The Law Gives Job and Benefits Protection to Reservists Returning from Active Duty
EXECUTIVE SUMMARY * THE UNIFORMED SERVICES EMPLOYMENT AND Reemployment Rights Act of 1994 (USERRA) gives employees who take a leave of absence for active military service certain statutory rights--not only to reemployment but to specific coverage for retirement and wellness benefits. * THE LAW APPLIES TO ALL EMPLOYERS in the United States, regardless of their size, and it protects part-time positions, unless the employment was brief and nonrecurring. * USERRA REQUIRES THAT IF A MILITARY LEAVE of absence is less than 91 days, returning employees must be reinstated to the position they held or would have held if they had been continuously employed without interruption for military reasons. If the leave of absence is more than 90 days, the law says the employer must reinstate a returning employee to the position he or she would have had if no service call-up had occurred. * UNDER LIMITED CONDITIONS EMPLOYERS CAN REFUSE to hire hack an employee following discharge from military duty--for example, a downsizing that eliminated the employee's position might be a legitimate reason for denying reemployment. * THE RIGHTS OF THE RETURNING EMPLOYEE SUPERSEDE the rights of anyone hired to replace him or her, even if the replacement ends up with no position as a result. * USERRA REQUIRES EMPLOYERS TO OFFER ACTIVATED reservists and their dependents medical, hospital, dental and prescription drug coverage that conforms to the optional continuation provisions of the Consolidated Omnibus Budget Reconciliation Act (COBRA). A firm cannot discontinue medical coverage just because the employee is receiving health coverage as an active member of the armed services. As a result of the war in Iraq and the nation's increased vigilance against terrorism, tens of thousands of reservists have been and are being called to active military duty. Most will return to civilian life and their jobs. CPA firms and their clients whose employees have been called to serve need to understand their obligations under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Signed into law nine years ago by President Clinton, USERRA was designed to give employees who take a leave of absence for active military service certain statutory right--not only to reemployment, but to specific coverage for retirement and wellness benefits. Recognizing they have a duty to reinstate returning reservists, many firms and companies are asking what the exact obligations are. Their questions include * What job entitlements or protections does USERRA offer? * When reservists return home, do we have to give them their old jobs back? * What are my obligations as an employer if the employee volunteers? * Must our firm continue to provide coverage under our group health and pension plans? Employees returning after active duty have questions, too, among them * Am I covered under USERRA? * How does USERRA affect health and retirement benefits for me and my family? * What protections do I have against employment discrimination? * If a problem arises, what are my remedies? To avert misunderstanding resulting from poor communication between firms and their employees or from a lack of knowledge about the rights and responsibilities of each as defined by law, here are some answers. JOB SECURITY USERRA requires that if their military leave of absence is less than 91 days, returning employees must be reinstated to the position they held or would have held if they had been continuously employed without interruption for military reasons. According to Jackson Lewis Schnitzler & Krupman, a national law firm representing management in workplace legal matters, upon return to work, employers must offer employees called to military duty the same seniority, rights and benefits they would have been entitled to had they remained continuously employed. …