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When Soldiers Return From Service

Originally published: 09.01.07 by Mike Coyne


When Soldiers Return From Service

What you need to know about military personnel’s reemployment rights.

President Bush’s recent announcementof his intentionto send additional troops toIraq has brought renewed focusto the obligations of employers underthe Uniformed Services Employmentand Reemployment Rights Act of 1994(USERRA). Under this law, employershave certain obligations to employeeswho are forced to leave employment formilitary service. The law is complicated,and if you are faced with an issue underthis law, you should consult with yourlegal adviser. Here is a short overview ofyour obligations:

Eligibility for Reemployment Rights

USERRA extends reemploymentrights for up to five years to individualswho are absent from employmenton account of military duty in the uniformedservices. The term “uniformedservices” includes not only the Army,Navy, Marine Corps, Air Force, or CoastGuard, but also any of their reserve units,including the Army National Guard,the Air National Guard, members ofthe Commissioned Corps of the PublicHealth Service, and any other categoryof person designated by the President.The term “service” includes activeduty, active duty for training, inactiveduty training, full-time National Guardduty, absence from work for an examinationto determine a person’s fitnessfor duty, and funeral-honors duty byNational Guard or reserve members.In order to be eligible

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for reemploymentrights and restoration of employmentbenefits, the employee must haveprovided you with advance notice (writtenor verbal) that he or she was leavingthe job for military duty. In addition,the period of military duty whilethe person is your employee must nothave exceeded five years. Finally, the individualmust be released from serviceunder honorable conditions and mustreport back for reemployment in a timelyfashion.

Deadline for Reporting Back to Work

The amount of time after dischargethat the employee has to request reemploymentdepends upon the lengthof the employee’s military service. Forexample, if the military service of theemployee was less than 31 days, the employeemust report for work on the firstregular work day following completionof service, or if that is impossible or unreasonable,then as soon as possible. Anemployee who was in service for morethan 30 days but less than 181 days hasup to 14 days following discharge to reportto work. If service is more than 180days, the employee has up to 90 days toreport.

Employee’s Rights to Payand Benefits

An employee who returns to youremploy within 90 days is entitled to hisor her old job. An employee who is gonemore than 90 days is entitled to his orher old job or a job having similar seniority,status, and pay that the employeeis qualified to perform. The employerhas an obligation to provide reasonabletraining in these circumstances. In applyingthese rules, a rule called the “escalatorprinciple” applies. This is a requirementthat the returning employeeis entitled to the position and pay levelthat the employee would have had if employmenthad continued uninterrupted.In addition to guaranteeing reemployment,the employer is obligated torestore benefits including health-insurancecoverage, without any waitingperiod or exclusion for pre-existingconditions other than those that wouldotherwise apply. However, illnesses orinjuries incurred or aggravated duringmilitary service cannot be excluded aspre-existing conditions. There are alsoprotections for retirement benefits.These rules primarily affect definedbenefitpension plans and 401(k) plans.If an employee has been absent formilitary service more than 30 days, theemployee cannot be terminated fromemployment without cause for 180 days.If the employee was absent for morethan 180 days, the employee cannot beterminated without cause for one year.As you might expect, the law alsoprotects employees who attempt to enforcetheir rights under USERRA fromany discrimination or retaliation by theemployer.

Exception for ‘Changed Circumstances’

Fortunately, the law does recognize that some employers will find it undulyburdensome to comply with theserequirements. Thus, the law providesan exception in the case of “changedcircumstances.” An employer is not requiredto reemploy a returning veteranif the employer’s circumstances havechanged to the extent that reemploymentwould be impossible, unreasonable,or would impose an undue hardshipon the employer.

Penalties for Violations

The penalties for violating this lawcan be severe. An employer can be orderedto reinstate an employee withmonetary damages, including back payand benefits. In addition, the employercan be forced to pay the employee’s attorneys’fees, expert witness fees, andcourt costs. In the case of eight “willful”violations, double damages can beawarded.

Michael P. Coyne is a founding partner ofthe law firm, Waldheger Coyne, located inCleveland, Ohio. For more information onthe firm, visit www.healthlaw.com or call 440-835-0600.

 


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