When Soldiers Return From Service
Originally published: 09.01.07 by Mike Coyne
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
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.
Articles by Mike Coyne
Spotting Legal Land Mines in Your Social Media Campaign
Your responsibility extends to third-party contributors such as customers and friends.
4 Ways To Avoid Discrimination Claims Related to Hiring
Hiring a Veteran Has Benefits
Address Texting-While-Driving Head On
This theory of liability applies when employees are acting within the scope of employment or for the benefit of employer.
Keep Corporate Debt Separate from Personal Debt
If you are operating your business in corporate form, it is important to follow formalities. You should sign contracts in your capacity as an officer, and contracts should always be between your corporation and the other party. You should never be named as a party to the contract.