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The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects those who leave a civilian job for military duty. Whether the call to duty is voluntary or involuntary, USERRA allows personnel to take leave for military service, protects them from discrimination and retaliation, and mandates continued health coverage during and after military service.
Eligibility Requirements
Under USERRA, service men and women are entitled to reemployment if they meet four straightforward eligibility criteria:
- Having left a civilian job for the purpose of performing voluntary or involuntary service in the uniformed services after giving advance notice to the employer.
- The cumulative period or periods of military service during a particular civilian employment relationship must not exceed five years.
- They must be released from the period of military service under honorable conditions.
- They must make a timely application for reemployment.
Requirements of Reemployment
For seniority and pension purposes, returning members of the armed services must be treated as if they had been continuously employed. Reemployment must include the same seniority, status, pay level, and other benefits that returning employees would have received but for service. The employer must provide training to returning employees to restore or enhance the employees’ skills to the level that would have been reached if national service had not interrupted employment. USERRA also provides another unusual benefit for some employees returning from military leave: they cannot be discharged except for cause. The rules regarding “for cause” discharge are based on length of service.
USERRA provides statutory remedies that include injunctive relief, lost wages and benefits, liquidated damages in an amount equal to lost wages and benefits in case of willful violations, and attorneys’ fees and costs.
Sadly, thousands of National Guard and Reserve personnel are returning with serious service-related disabilities. The pre-service employer is required to make “reasonable accommodations” to enable disabled veterans to return to their pre-service positions or to reemploy returning disabled veterans in other positions that provide like seniority, status, and pay or the closest approximation thereof consistent with the veterans’ circumstances.
USERRA Notification
Employers must give notice of USERRA rights, benefits, and obligations to their employees. The U.S. Department of Labor provides a notice of rights that satisfies this requirement. It can be included in other materials and also should be posted in common areas, mailed to employees, or distributed by email. USERRA notice requirements for employers are explained on the Department of Labor’s website at www.dol.gov/elaws/userra.htm. An approved notice, in poster format, can be found at www.dol.gov/compliance/laws/comp-userra.htm#posters. To learn more about USERRA regulations, go to www.dol.gov/vets/regs/fedreg/final.
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