THE UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT ACT

USERRA

Purpose: USERRA provides employment and reemployment rights for members of the uniformed services, including veterans and members of the Reserve and National Guard. Under USERRA, service members who leave their civilian jobs for military service can perform their duties with the knowledge that they will be able to return to their jobs with the same pay, benefits, and status they would have attained had they not been away on duty. USERRA also prohibits employers from discriminating against these individuals in employment because of their military service. The intent is to protect the job rights of individuals who voluntarily leave employment positions to perform service in the military.

Employee Rights:

Reemployment: An employee has the right to be reemployed in his or her civilian job, if he or she leaves that job to perform services in the uniformed service and:

• (i)Ensures that the employer receives advance written or verbal notice of service;
• (ii)The employee has five years or less of cumulative service in the uniformed service while with that particular employer (i.e. the employee has been away from the employer for five years or less due to military obligations);
• (iii)Returns to work or applies for reemployment in a timely manner after conclusion of service (guidelines: 1-30 days of service = report next scheduled work day after travel and 8 hours rest; 31 – 180 days of service = apply for reemployment within 14 days after completion of service; 181+ days of service = apply for reemployment within 90 days after completion of service); and
• (iv)Has not been separated for service with a disqualifying discharge or under other than honorable conditions.

Free From Discrimination and Retaliation: Past, present members of the uniformed service that have applied for membership in the uniformed service, or are obligated to serve in the uniformed service cannot be denied from an employer initial employment, reemployment, retention in employment, promotion, or any benefit of employment because of his or her military status.

Health Insurance Protection: If an employee leaves his or her job to perform military services, the employee has the right to elect to continue his or her existing employer-based health plan coverage for himself or herself and his or her dependents for up to 24 months while in the military; however, depending on the type of employer provided insurance the service member may be required to pay 102% of the full premium (similar to COBRA), which represents the employer’s share, plus the employee’s share, plus 2% for administrative costs. If the employee does not elect to continue coverage, the employee has the right to be reinstated upon reemployment, generally without any waiting periods or exclusions. For military service of less than 31 days, health care coverage is provided as if the service member had remained employed.

USERRA’s continuation coverage and reinstatement provisions only apply to health plan coverage that is provided in connection with the service member’s employment, health plan coverage obtained under another family member’s policy or separately obtained by an individual would not be governed by USERRA. Similarly, where the service member is a dependent of the covered employee or the service member is a retiree, USERRA’s continuing coverage and reinstatement provisions would not apply because the coverage is not in connection with a position of employment.

USERRA does not require an employer to establish a health plan or provide any particular type of coverage. If an employee has health care coverage under the employer’s existing health plan, under both COBRA and more broadly USERRA, the plan must allow the employee and the employee’s eligible dependents to continue coverage when the employee is performing military service.

Pension Plan Benefits:

On reemployment, an employee covered by USERRA is treated as no having a break in service with the employer or employers maintaining a pension plan for purposes of participation, vesting, and accrual of benefits. USERRA requires that an employee’s period of military duty be counted as service with the employer for purposes of eligibility, vesting, and the allocation of employer contributions under a 401(k) plan. Returning service members are treated as if they had been continuously employed. An employee cannot be treated as having incurred a break in service because of a period of military service.

Generally, the employer is not required to make contributions attributable to the employee’s period of service until the employee is reemployed.

As to 401(k) plans, there is no requirement for the employer to continue to make employer contributions during the employee’s period of service. However, upon the employee’s return from military duty and reemployment, the employer must make employer contributions that would have been made if the employee had been employed during the period of service; this applies to profit sharing or money purchase pension plans, where the employer must make the non-elective employer contributions that would have been made during the military service period. The participant must also receive make-up employer contributions for any other discretionary (non-matching) contributions that would have been made under the 401(k) Plan on behalf of the participant if the participant had been employed during the period of military duty. The participant’s compensation for the period of the military service to be used in determining make-up employer contributions is generally based on the compensation the participant would have received during the leave. If this is not reasonably certain, the participant’s average compensation received during the 12 months immediately before the period of military service may be used.

If employee contributions are required or permitted under the 401(k) plan, or other contributory plan, the employee has a period equal to 3X the period of service or 5 years, whichever ends first, to make up the contributions. If the employee makes up the contributions, the employer must make any matching contributions required under the plan.

Employer Rights:

USERRA includes guidelines for the employers of service members, such as the following:

• (i)Employers cannot discriminate, but they are not required to give preferential treatment to service members.
• (ii)When an employee who works for the federal government is due to miss work, the employer may contact his/her military commander to explain the difficulties caused by the employee’s military service. The employer may request changes to make the employee’s service less burdensome. However, the military is not required to agree to these changes.
• (iii)If a returning service member does not request reemployment in a timely manner, the employee may be disciplined. This discipline must be consistent with the way the employer normally disciplines other workers who are absent without leave or authorization for a similar period of time.
• (iv)Employers may not have to reemploy service members if:

• (a)Changes in the employer’s circumstances make reemployment impossible or unreasonable (e.g., the employer is going out of business);
• (b)The original employment was temporary, with no reasonable expectation that it would continue indefinitely or for a significant period (e.g., a housing contractor hiring a carpenter just for one specific job);
• (c)The service member sustained an injury that would create an “undue hardship” on the employer if he were reemployed. Employers must make reasonable efforts to accommodate injured service members, but if such accommodations are impossible, unreasonable, or use a prohibitive amount of resources, reemployment may not be required;
• (d)The service member received an unfavorable discharge;
• (e)The service member exceeded the five-year limit as defined in §4312(c). Important Note: There are many exceptions to the general five-year rule, where certain types of service will not count toward the five-year total. The exceptions are listed in subsections 1 through 4 of §4312(c).

Enforcement:

The U.S. Department of Labor, Veterans Employment and Training Service (VETS) is authorized to investigate and resolve complaints of USERRA violations.

If resolution is unsuccessful following an investigation, the service member may have his or her claim referred to the Department of Justice for consideration of representation in the appropriate District Court, at no cost to the claimant.

If violations under USERRA are shown to be willful, the court may award liquidated damages.

Questions:

Adrian C. Ribovich, Esq.

Brennan, Manna & Diamond, LLC

75 E. Market Street

Akron, OH 44308

PH: 330-374-7481

FAX: 330-374-7482

e-mail: [email protected]

web-site: www.bmdllc.com

The information provided on this website/document is for public information only and does not constitute legal advice. The reader is advised to contact an attorney for advice on specific facts or circumstances.