Know the Law: Employer must follow USERRA to help Reservist
I own a small business here in New Hampshire that employs fewer than 10 people. One of my employees is in the U.S. Army Reserve and has to leave in three months for several weeks of military training. What are my obligations to this employee? What do I do with his job while he is gone?
This employee is likely covered under the Uniformed Service Employment and Reemployment Rights Act (USERRA). Intended to promote and protect the role of service members in the civilian workforce, USERRA was passed in 1994 as a means to ensure all uniformed service members will not be discriminated against in the employment process and will be able to maintain their civilian jobs while away on active service.
All employers, both in the private and public sectors, and regardless of their size, must operate under USERRA. This means, even though your business is small and may be exempt from other employee-related benefit obligations, you must make sure you follow your responsibilities under USERRA.
First, the law requires that a service member give his employer reasonable notice, when practical, prior to leaving for military duty. Although reasonable notice is not defined, it is considered enough notice to allow the employer to make accommodations. Here, your employee has given you three months, which would most likely be considered more than reasonable notice, and allow this employee the protections of USERRA.
USERRA requires that the employer keep the employee’s job open while they are away on military duty. The employer does not need to pay the employee while they are away on leave, but they may do so if they choose.
In addition to keeping the job open, USERRA requires that the employee be reinstated to the job, pay and benefits that they would have had had they not left for military service. This is often called the “escalator” principle.
For example, if while this employee is away, your business implements a raise in salary, or a promotion for similar employees, upon return from military training, this employee must receive the same increase in salary, position, or benefits that he would have had he not left for duty.
Finally, although this employee has told you they intend to return to work after training, for leaves less than 31 days, USERRA requires that the employee return to work at the beginning of the next regularly scheduled work period.
For leaves between 31-181 days, they must submit an application for reemployment within 14 days of release form service. If the training is over 180 days, they must submit this reapplication within 90 days of release from service.
Laurie Jirak can be reached at firstname.lastname@example.org.
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