Questions and Answers for Employers and Employees who participate in the National Guard and Reserve
UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT
The Uniformed Services Employment and Reemployment Rights Act (USERRA) is codified in title 38, United States Code, sections 4301-4333 (38 U.S.C. 4301-4333).
The complete text of USERRA is available on this web site.
A person who leaves a civilian job for voluntary or involuntary "service in the uniformed services" is entitled to reemployment in the civilian job (with accrued seniority) if he or she meets the following eligibility criteria:
No. 38 U.S.C. 4312(h). She is only required to give you notice, not to obtain your permission. You have no right to veto the timing, frequency, duration, etc. You are permitted to contact the Commanding Officer. It is Department of Defense (DOD) policy that the Commanding Officer should work with you to resolve conflicts of this kind. The Commanding Officer will accede to your reasonable request to reschedule military training, unless doing so would detract from unit readiness and mission accomplishment.
If the timing of this training period presents a real problem for you, the Commanding Officer will try to adjust the schedule for you, but please understand that such rescheduling must be kept to a minimum. National Guard and Reserve units train together, and they must go to war together. The training periods are scheduled so that the unit can be trained together. If an individual unit member undergoes training at a different time, it is likely to be impossible to replicate the training that the rest of the unit received. As a result, the individual unit member may not be able to perform some critical task, resulting in additional casualties and endangering the accomplishment of the mission.
Under the "Total Force Policy," our nation is more dependent than ever before upon the National Guard and Reserve for essential military readiness. The National Guard and Reserve make up almost half of the total pool of available military personnel.
USERRA does not require an employer to pay an individual for time not worked due to service. Another Federal law (5 U.S.C. 6323) gives Federal civilian employees the right to 120 hours per fiscal year of paid military leave. About 40 states have similar laws for state and local government employees.
If an employee is exempt from the Fair Labor Standards Act (FLSA) overtime rules, you are not permitted to make a deduction for a part of a pay period missed because of temporary military leave. See 29 Code of Federal Regulations 541.118(4). This is an FLSA requirement, not a USERRA requirement.
If and to the extent that you provide benefits to employees who have been furloughed (laid off) or to employees on some kind of non-military leave (jury leave, educational leave, etc.), you must provide similar benefits to employees who are away from work performing service in the uniformed services. 38 U.S.C. 4316(b).
An employee who is away from work performing service in the uniformed services is entitled to elect continued health plan coverage through the civilian job. If the period of service is less than 31 days, you are permitted to charge the employee only the employee share (if any) of the cost of the coverage. If the period of service is 31 days or more, you are permitted (but not required) to charge the employee up to 102% of the entire premium, including the part that the employer normally pays in the case of active employees. 38 U.S.C. 4317(a).
That depends upon the duration of the period of service from which the employee is returning. If the period of service is less than 31 days, the employee is required to report for work "not later than the beginning of the first regularly scheduled work period on the first full calendar day following the completion of the period of service and the expiration of eight hours after a period allowing for the safe transportation of the person from the place of that service to the person’s residence." 38 U.S.C. 4312(e)(1)(A)(i). If reporting at that time is impossible or unreasonable through no fault of such person (e.g., automobile accident on return trip), the employee is required to report for work as soon as possible thereafter. 38 U.S.C. 4312(e)(1)(A)(ii).
If the period of service was 31-180 days, the employee is required to submit an application for reemployment within 14 days after the end of the period of service. 38 U.S.C. 4312(e)(1)(C). If the period of service was 181 days or more, the individual must submit the application for reemployment within 90 days. 38 U.S.C. 4312(e)(1)(D). These deadlines can be extended by up to two years if the individual is hospitalized or convalescing for a service-connected injury or illness. 38 U.S.C. 4312(e)(2)(A).
No particular form is required. The message is: "I used to work here. I left for service. Now, I am back from service, and I want my job back." You must not treat the applicant for reemployment as if he or she were applying for a new job.
We (ESGR) recommend that returning employees make explicit written applications for reemployment, and we have included a sample application letter on our web site. However, the for application reemployment can also be made orally, or even by implication. If a person you know to be a former employee shows up at your office with military discharge papers in hand, his or her failure to use "magic words" like "I apply for reemployment" does not defeat his or her right to the job.
The returning veteran is entitled to immediate reinstatement of his or her health plan coverage, through the job, including coverage for family members. There must be no waiting period and no exclusion of "pre-existing conditions" (except conditions that the U.S. Department of Veterans Affairs has determined to be service-connected. 38 U.S.C. 4317(b).
You must treat the returning veteran, for seniority purposes, as if he or she had been continuously employed. You are also required to make up missed employer contributions to the pension plan, as if he or she had been continuously employed.