HR LAW: WHAT IS USERRA?

HR LAW: What is USERRA?

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HR Law: What is USERRA?HR Law: What is USERRA?  “The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) is a Federal law that establishes rights and responsibilities for Uniformed Service Members and their Civilian Employers. USERRA is a Federal law intended to ensure that persons who serve or have served in the Armed Forces, Reserve, National Guard, or other uniformed Services:

(1) are not disadvantaged in their civilian careers because of their service;

(2) are promptly reemployed in their civilian jobs upon their return from duty; and

(3) are not discriminated against in employment based on past, present, or future military service. The law is intended to encourage non-career uniformed service so the United States can enjoy the protection of those Services, staffed by qualified people, while maintaining a balance with the needs of private and public employers who also depend on these same individuals.

USERRA protects the job rights of individuals who voluntarily or involuntarily leave employment positions to perform service in the uniformed Services, to include certain types of service in the National Disaster Medical System and the Commissioned Corps of the Public Health Service. USERRA affects employment, reemployment, and retention in employment, when employees serve in the uniformed Services. USERRA also prohibits employers from discriminating against past and present members of the uniformed Services and applicants to the uniformed Services.” Sourced from ESGR

COVERED EMPLOYEES

USERRA Covered Employees must inform their employer of the need for a leave of absence for military service.  Open communication between the employee and the employer is crucial to making sure everyone is on the same page and aware of each party’s legal responsibilities and rights.  In order for the employee to be eligible for reinstatement upon returning from military service:

◊ The employee must provide prior notice to the employer as soon as the employee receives the military service date. 30 days if possible

◊ Employee must leave the employer’s workplace for military service.

◊ Employee must serve under honorable conditions

◊ Employee must not be absent for more than 5 cumulative years from 1 employer, with some exceptions.

◊ Employee must return back to work in a timely manner: HR can request the employee’s discharge/separation papers for documentation if the employee was on leave for over 30 days.

» If employee served 1 to 30 days: they must report back to work on the next work day.

» If employee served 31 to 180 days: they must reapply within 14 days of service release date.

» If employee served 181 plus days: they must reapply within 90 days of service release date.

POSTING

USERRA Posters: “Employers are required to provide to persons covered by USERRA a notice of the rights, benefits, and obligations of the employees and employers under USERRA.  To do this, employers may post the notice entitled “Your Rights Under USERRA” where employer notices are customarily placed, mail it, or by distributing it via electronic mail. There is no size requirement for the poster version of the notice.” Sourced from the US DOL

ENFORCEMENT

Who Enforces USERRA? The US Department of Labor has a division called Veteran’s Employment and Training Service (VETS) enforces USERRA regulations and protections.  “Penalties and Sanctions: A court may order an employer to compensate a prevailing claimant for lost wages or benefits. USERRA allows for liquidated damages for “willful” violations.  Relation to state, Local and other Federal Laws: USERRA does not pre-empt state laws providing greater or additional rights or benefits, but it does preempt state laws providing lesser rights or benefits or imposing additional eligibility criteria.” Sourced from the US DOL

Statistics from the DOL:

38% of reviewed complaints under USERRA contained allegations of discrimination on the basis of past, present or future military service or status.

28% of complaints invoived alliegations of improper reinstatement into civilian jobs following military service.  HR Law: What is USERRA?


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