Do you know what to do when an employee is called up for active duty or enlists in the military, other than to wish him good luck? The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) establishes your obligations and assures that employees who serve our country do not suffer in their employment when they return to civilian life. This law is not intuitive and requires companies to plan for both the absence and the return of the employee. Keep in mind that the law does not care about the effect of the employee's absence on your company.
USERRA applies to companies of all sizes and protects their employees who are in the uniformed services. Uniformed services include the Army, Navy, Marine Corps, Air Force, Coast Guard, the Public Health Service Commissioned Corps and the National Guard and reserves. Employees who leave your employment to enlist or who are called up have the same rights under USERRA, and those rights are nearly absolute.
The point of this law is to guarantee that employees do not suffer losses in their jobs because they serve their country. To achieve this, USERRA requires a company to grant the employee leave to serve and to allow the employee to use any paid accrued leave. Note that the law only requires the employee to give the company notice he is leaving, even if that notice is a phone call the day he ships out.
The import of the law becomes clear when the employee wants to return to work. The company must treat him in all areas of his employment life as if he had never been absent. The company must reinstate him to the position and pay rate he would have had if he had worked the entire period of his absence, removing another employee, if necessary, or training his if he is not qualified for that advanced position. The company also must set his benefits at the same level he would have had if he had worked for the company during his service. This includes funding his pension when he returns to the level he would have had if he had been employed and giving him the right to make employee contributions. Finally, depending on the length of service, employees may not be discharged except for cause for certain periods after reinstatement.
Two great myths exist in the business world. One is that an employee only has reinstatement rights for five years. In fact, the reason for service determines how long reinstatement rights last. Anyone called up to serve in Afghanistan, Iraq or Kosovo has reinstatement rights beyond five years. The second is that only employees who are called up are protected. Rather, USERRA grants the same protections to employees who leave your company to enlist as reservists who are called up.
This is not a time for companies to guess about their obligations under USERRA. The law contains very specific requirements and provides very few defenses for companies, which fail to comply. Remember, your employee served his or her country and the law will not allow a company to penalize him or her, intentionally or otherwise, because of that.
This article is intended to serve as a summary of the issues outlined herein. While it may include some general guidance, it is not intended as, nor is it a substitute for, legal advice. Your receipt of Good Company or any of its individual articles does not create an attorney-client relationship between you and Sheehan Phinney Bass + Green or the Sheehan Phinney Capitol Group. The opinions expressed in Good Company are those of the authors of the specific articles.
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