Neither USERRA nor any other federal statute gives you the right to insist that a civilian employer reinstate you when you return from a period of FEMA reservist duty. I couldn't find anything about how long before a period of military service your employer must allow you to have off. If the employee submits an application for reemployment after a period of service of more than 30 days, he or she must, upon the request of the employer, provide documentation to establish that: Documents that satisfy the requirements of USERRA include the following: The types of documents that are necessary to establish eligibility for reemployment will vary from case to case. USERRA applies to all public and private employers in the United States, regardless of size. No. USERRA defines seniority as longevity in employment together with any employment benefits that accrue with, or are determined by, longevity in employment. The following is a brief summary of the Uniformed Services Employment and Reemployment Rights Act of 1994. There is no exclusion for executive, managerial or professional employees. Trainees are amazed as they learn about USERRA: Supporting documentation comes at the end of the leave, not the beginning. Service performed in a uniformed service if he or she was ordered to or retained on active duty under the following circumstances: The employee is deemed to be on furlough or leave of absence from the civilian employer while performing military duty. Does USERRA protect against discrimination in initial hiring decisions? No. Yes. Review your Absent-US checklist to assist you in completing this form. The employee is permitted but not required to identify a particular reemployment position in which he or she is interested. The employer must determine the seniority rights, status and rate of pay as though the employee had been continuously employed during the period of service. USERRA’s definition of “service in the uniformed services” covers all categories of military training and service, most often understood as applying to National Guard and reserve military personnel. The appearance of hyperlinks does not constitute endorsement by the Department of Defense of non-U.S. Government sites or the information, products, or services contained therein. In a discharge action based on conduct, the employer bears the burden of proving that it is reasonable to discharge the employee for the conduct in question, and that he or she had notice, which was express or can be fairly implied, that the conduct would constitute cause for discharge. USERRA Resources USERRA training is also available to walk you through your employment rights. USERRA Military Leave and Reemployment Policy - New York, District of Columbia, and California Policy ... and knowingly provides written notice of intent not to return to a position of employment after service in the uniformed service, is not entitled to such rights and benefits. USERRA entitles most returning service members to reemployment after a period of service. INSTRUCTIONS This checklist provides important information regarding your benefits. Because USERRA turns all of our usual expectations of a leave of absence law upside down. What can you do to ensure you'll be able to work again? Once the parties involved file a formal complaint with the Department of Labor or hire private council, ESGR ombudsmen can no longer offer assistance. USERRA does not provide protections for independent contractors. USERRA also protects servicemembers from discrimination in the workplace based on their military service or affiliation. Whether you’re a uniformed services member returning from active duty or TDY, or you’re a federal employee returning from TDY, there are a few things you need to know. Separated from uniformed service with a dishonorable or bad conduct discharge; Separated from uniformed service under other than honorable conditions, as characterized by regulations of the uniformed service; The extent of the employer’s right to control the manner in which the individual’s work is to be performed; The opportunity for profit or loss that depends upon the individual’s managerial skill; Any investment in equipment or materials; Whether the service the individual performs requires a special skill; The degree of permanence of the individual’s working relationship; and. Yes. If the service member or employer chooses to open a formal investigation regarding a USERRA violation, they may do so by contacting the Department of Labor. Federal employees can request assistance through ESGR and Department of Labor/ Veterans’ Employment and Training Service. Why is this a favorite of mine? Similarly, the status of the reemployment position requires the employer to assess what would have happened to such factors as the employee’s opportunities for advancement, working conditions, job location, shift assignment, rank, responsibility and geographical location if he or she had remained continuously employed. USERRA and is eligible to receive retirement service credits and plan contributions upon returning to work. Yes. Yes. Your rights under USERRA . You must initial all applicable blocks to indicate your elections and confirm that you read and understand your options/conditions. The plan must allow the employee to elect to continue coverage for a period of time that is the lesser of: If the employee performs service in the uniformed service for fewer than 31 days, he or she cannot be required to pay more than the regular employee share, if any, for health plan coverage. USERRA only allows make-up contributions with the same employer that you worked for before you left for military service. The time within which employees must return to work following military leave depends on the length of their leave, as follows. USERRA does not require the employer to adopt a formal seniority system. Although USERRA initially received little attention, it has gained new prominence Service performed to fulfill periodic National Guard and reserve training requirements and includes service performed to fulfill additional training requirements determined and certified by a proper military authority as necessary for the employee’s professional development, or to complete skill training or retraining. If the employee works in one of those specialties, he or she has reemployment rights when the initial period of obligated service is completed. It provides returning service members a virtually unfettered right to re-employment with their pre-service employers upon timely application for return to work. Leave Active Duty and Apply for Reemployment and Return to Work To Obtain Civilian Pension Credit for the Period of Service By Captain Samuel F. Wright, JAGC, USN (Ret. If the employee has coverage under a health plan in connection with his or her employment, the plan must permit the employee to elect to continue the coverage for a certain period of time as described below: When the employee is performing military service, he or she is entitled to continuing coverage for himself or herself (and dependents if the plan offers dependent coverage) under a health plan provided in connection with the employment. The timeframe depends on how long the service member has been absent: USERRA does not apply to FEMA reservists. I read through USERRA and all I could find was how long you have before you need to return to work and/or seek reemployment. An employer must not deny initial employment, reemployment, retention in employment, promotion or any benefit of employment to an individual on the basis of his or her military service. These time limits for returning to work depend (with the exception of fitness-for-service examinations) on the duration of a person’s military service. Even if the employee tells the employer before entering or completing uniformed service that he or she does not intend to seek reemployment after completing the uniformed service, the employee does not forfeit the right to reemployment. 1-30 days of service: Report next scheduled workday, 31-180 days of service: Apply within 14 days completion of service, 181+ days of service: Apply within 90 days after completion of service. USERRA became law on October 13, 1994, and its reemployment provisions apply to all members of the uni-formed services seeking civilian reemployment on or after December 12, 1994 . As a general rule, the employee is entitled to reemployment in the job position that he or she would have attained with reasonable certainty if not for the absence due to military service. Although the Department of Defense may or may not use these sites as additional distribution channels for Department of Defense information, it does not exercise editorial control over all of the information that you may find at these locations. In a defined contribution plan, the benefit may not be the same as if the employee had remained continuously employed, even though the employee and the employer make up any contributions or elective deferrals attributable to the period of service, because the employee is not entitled to forfeitures and earnings or required to experience losses that accrued during the period or periods of service. If the employee performs service in the uniformed service for 31 or more days, he or she may be required to pay no more than 102% of the full premium under the plan, which represents the employer’s share plus the employee’s share, plus 2% for administrative costs. ESGR provides a breakdown of USERRA’s clauses to help you understand the limitations, exceptions and details of its coverage. Yes. Liability under a multi-employer plan for employer contributions and benefits in connection with USERRA’s health plan provisions must be allocated either as the plan sponsor provides or, if the sponsor does not provide, to the employee’s last employer before his or her service. These time limits for returning to work depend (with the exception of fitness-for-service examinations) on the duration of a person’s military service. If the employee was unable to obtain orders releasing him or her from service in the uniformed services before the expiration of the five-year period, and the inability was not the employee’s fault. This is an easy-to-use interactive form. Department of Defense 214 Certificate of Release or Discharge from Active Duty; Copy of duty orders prepared by the facility where the orders were fulfilled carrying an endorsement indicating completion of the described service; Letter from the commanding officer of a Personnel Support Activity or someone of comparable authority; Certificate of completion from military training school; Discharge certificate showing character of service; Copy of extracts from payroll documents showing periods of service. In response to the difficulties encountered by servicemembers attempting to return to civilian employment, the U.S. Department of Labor (DOL) recently issued interpretive regulations to guide employers in complying with the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA or the “Act”). Call ESGR’s national customer service center at 1-800-336-4590 to get in contact with one of our trained ombudsmen. Returning from active duty or TDY. The USERRA prohibits all employers from discriminating against employees that leave to serve in the military and requires the employer to reinstate the employee if the absence is five years or less. The employer had advance notice of the employee’s service; The employee has five years or less of cumulative service in the uniformed services in his or her employment relationship with a particular employer; The employee returns to work in a timely manner as defined under USERRA; and. USERRA prohibits employers from discriminating aga inst employees who served, are currently serving, ... return to work. You can also contact us if you have any questions. The Defense Department “strongly recommends that advance notice to civilian employers be provided at least 30 days prior to departure for uniformed service when it is feasible to do so.”. Such links are provided consistent with the stated purpose of this website. Reemployment rights are terminated if the employee is: A commissioned officer dismissed by sentence of a general court-martial; in commutation of a sentence of a general court-martial; or, in time of war, by order of the president; A commissioned officer dropped from the rolls due to absence without authority for at least three months; separation by reason of a sentence to confinement adjudged by a court-martial; or a sentence to confinement in a federal or state penitentiary or correctional institution. USERRAguarantees an employee returning from military service or training the right to be re-employed at his or her former job (or as nearly comparable a job as possible) with the same benefits. For example, an employer cannot require a service member who returns home at 10 p.m. to report to work 2.5 hours later at 12:30 a.m. It does not matter if the raises result from a collective bargaining agreement or employer policy. Does USERRA protect against discrimination in initial hiring decisions? USERRA is a federal law that protects the employment and job rights of military members who leave their civilian jobs to perform military service. you return to work or apply for reemployment in a timely manner after conclusion of service; and you have not been separated from service with a disqualifying discharge or under other than honorable conditions. USERRA protects the job rights of individuals who voluntarily or involuntarily leave employment positions to undertake military service or certain types of service in the National Disaster Medical System. Learn about USERRA and how it helps veterans return to civilian life. In general, the employee may perform service in the uniformed services for a cumulative period of up to five years, under the current statute, and retain reemployment rights with the employer. For instance, upon reemployment, you must be returned to your job with the benefits you would have attained had you not taken leave. Subject to the terms and conditions set forth below, any person whose absence from a position of employment with the University is necessitated by reason of service in the uniformed services shall be entitled to the reemployment rights and benefits and other employment benefits of this Policy in accordance with the following terms and conditions: Such person (or an appropriate officer of the uniformed service in which such service is performed) must provide advance written or oral notice of se… The employer cannot discriminate against you because of your military connection. In the introduction to our first USERRA post we noted that “[s]upporting documentation comes at the end of the leave, not the beginning.” USERRA has no provision requiring the servicemember to provide the employer a copy … The employer must make reasonable efforts to accommodate the employee’s disability and to help him or her to become qualified to perform the duties of one of these positions: Yes. This position is known as the escalator position. Discover what servicemembers must be aware of when returning to work. Find programs and services at your local installation. It also has information about filing employment claims if you experience any employment issues related to your service in the National Guard. USERRA, which was passed in 1994, provides many protections. A disabled service member is entitled, to the same extent as any other individual, to the escalator position he or she would have attained if not for military service. Eligibility criteria. The employee is only required to give the employer notice of pending service. Health Benefits. In the event a conflict arises that the employee and employer are unable to resolve, ESGR’s trained ombudsmen can provide mediation. The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), enacted in October 1994 (and significantly updated in … For instance, upon reemployment, you must be returned to your job with the benefits you would have attained had you not taken leave. Making USERRA apply to folks like you would require a statutory amendment. After completion of weekend drill, what is the time limit for an employee to return to work? What are the basic eligibility requirements for job protection under USERRA? For example, an employer with only one employee is covered for purposes of the act. The employee is not required to ask for or get his or her employer’s permission to leave to perform military service. The employee has not been separated from service with a disqualifying discharge or under other than honorable conditions. Your employer usually cannot put any limitations or waiting periods on this right of return, except for illnesses and injuries suffered during service. Under USERRA, upon returning to work, an employee is entitled to all seniority rights and benefits (1) that he had on the date that he left for service, and (2) that he would have attained if the employee had remained continuously employed. USERRA coverage may be triggered prior to formal military orders. Trainees are amazed as they learn about USERRA: Supporting documentation comes at the end of the leave, not the beginning. Learn about USERRA and how it helps veterans return to civilian life. The employer must promptly reemploy the employee when he or she returns from a period of service if the employee meets USERRA’s eligibility criteria. 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