Q & A USERRA The Uniformed Services Employment & Reemployment Rights Act of 1994 Revised and Restated
Table of Contents Introduction...1 What types of military service are subject to USERRA?...2 What does service mean?...2 Does USERRA provide reemployment rights to individuals who hold temporary positions prior to entering the military service?...3 In order to qualify for reemployment, what is the maximum length of an employee's absence from his/her position?...3 Must an employee provide his/her employer advance notice of military service?...4 What is an employee's deadline to apply for reemployment after military service ends?...4 May an employer require documentation to establish the timelines of the application for reemployment?...5 Must an individual receive an honorable discharge in order to qualify for USERRA coverage?...5 Does USERRA contain any exceptions to the reemployment requirement?...6 To what position must the employer reemploy an individual following military service?...6 What are the retention rights of a reemployed individual?...7 Which government agencies have enforcement powers under USERRA?...7 Which pension plans are subject to USERRA?...8 Will an individual incur a break in service during his/her military service?...8 and more
Introduction The Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) revised and restated the Federal law protecting veterans reemployment rights. Under USERRA, an employee who leaves a civilian job for military service generally is entitled to reemployment by the premilitary civilian employer. In addition to reemployment rights, a returning veteran also is entitled to certain retirement and other benefits that would have accrued, had the employee not been absent due to the military service. Prior to USERRA, veterans enjoyed certain reemployment rights upon their return to civilian employment. However, the applicable statutory guidance on these rights was unclear both to employers and to veterans. Congress passed USERRA to clarify and to revise existing veterans' reemployment rights law. The expressed Congressional purpose of USERRA was to encourage noncareer service in the uniformed services by eliminating and minimizing the disadvantages for veterans returning to civilian careers. USERRA includes strong antidiscrimination and enforcement provisions to ensure compliance. Generally, USERRA became effective with respect to reemployments occurring after December 11, 1994. The general mandate of USERRA is the civilian employer of a person who enters military service must reemploy that person upon military discharge. While USERRA provides certain limits and exceptions to this general mandate, the scope of the law is fairly broad. If USERRA requires an employer to reemploy a veteran, the employer also must restore rights and benefits "lost" due 1
to military service. The employer must determine the specific rights and the level of benefits by assuming the employer continuously employed the veteran during his or her military leave. USERRA specifically addresses the pension rights of the returning veteran. What types of military USERRA extends service are subject reemployment rights to USERRA? to persons absent from work because of service in the uniformed services. The uniform services include the following military branches: Active Duty Army, Navy, Marine Corps, Air Force or Coast Guard Army, Navy, Marine Corps, Air Force or Coast Guard Reserves Army National Guard or Air National Guard Commissioned Corps of the Public Health Service. Any other category of persons designated by the President of the United States in a time of war or emergency. Does USERRA contain any exceptions to the reemployment requirement? 2 USERRA does not require an employer to reemploy a person if either the employer's circumstances have changed as to make reemployment impossible or unreasonable, or reemployment would cause "undue hardship" on the employer. Undue hardship means reemployment would require the employer to undertake significant difficulty or expenses in light of the overall financial resources of the employer, the overall size of the business of the employer and the number, type and location of the employer's facilities.
What does service mean? Service in the uniformed services means duty on a voluntary or involuntary basis, including: Active duty Active duty for training Initial active duty for training Inactive duty training Full-time national guard duty and Absence from work for an examination to determine a person's fitness for any of the above types of duty. The information provided in this pamphlet is based upon complex requirements of the Internal Revenue Code and Treasury Regulations. It is provided with the understanding that the preparer is not engaged in rendering legal, accounting, or other professional services. Although care has been taken to present the material accurately, the preparer disclaims any implied or actual warranties as to the accuracy of any material herein and any liability with respect thereto. 2000 USERRA1000