Employment
Protection for National Guardsmen
National Employer Support of the Guard and Reserve
The National Committee for Employer Support of
the Guard and Reserve (ESGR) is an agency of the Office
of the Assistant Secretary of Defense for Reserve Affairs. It
was established in 1972 to promote cooperation and understanding
between Reserve component members and their civilian employers
and to assist in the resolution of conflicts arising from an
employee's military commitment Today ESGR operates through a
network of more than 4,500 volunteers throughout 54 committees
located in each state, the District of Columbia, Guam, Puerto
Rico and the Virgin Islands. For more information contact the
National Committee for Employer Support of the Guard and Reserve
or the Alaska Committee for Employer Support of the Guard and
Reserve. This agency assists in promoting cooperation and
understanding between Reserve component members and their
civilian employers. The web site of the National Committee of
Employer Support of the Guard and Reserve,
http://www.esgr.org explains employers' legal rights and
obligations. This site also gives employers tips on helping
their employees balance military service with employment. In
addition, you can download a copy of the useful "Non-Technical
Resource Guide to Uniformed Services Employment and
Re-employment Rights Act.”
Uniformed Services Employment and Reemployment
Rights Act (USERRA)
Besides worrying about home or car payments,
ongoing civil court disputes and evictions of family or
dependents, activated Guard and Reserve personnel are often
concerned about whether they will have a job to return to once
their period of active duty is over. Fortunately, the answer is
usually yes. A federal law known as the Uniformed Services
Employment and Reemployment Rights Act of 1994, or USERRA (38
U.S.C. Section 4301 and following), prohibits discrimination
against members of the United States military or those who serve
in the military reserves. This law requires employers to
reinstate an employee who has taken time off to serve in the
armed forces, including reservists called up by the President,
if the employee meets these conditions:
The employee gave the employer notice, before
taking leave that the leave was for military service.
The employee spent no more than five years on
leave for military service.
The employee was released from military service
under honorable conditions, and
The employee reports back or applies for
reinstatement within specified time limits (these limits vary
depending on the length of the employee's leave).
USERRA requires employers to reinstate workers to
the same position or similar pay status they would have held had
they been continuously employed throughout their leave, provided
they are otherwise qualified for that job. This means that your
employer cannot simply return you to your old position. Instead,
the employer must give you any promotions, increased pay or
additional job responsibilities that you would have gotten had
you never taken leave -- but only if you are qualified to do the
job. If you are not qualified, your employer must try to get you
qualified (by providing training, for example). You are entitled
to the benefits and seniority that you would have earned had you
been continuously employed. For purposes of benefits plans and
leave policies, the time you spent on leave must be counted as
time worked. For more information on USERRA, go to
http://www.esgr.org or
http://www.dol.gov/asp/programs/handbook/userra.htm or
www.dol.gov. The web sites have fact sheets and frequently
asked questions about USERRA.
USERRA Facts, Questions/Answers for Employees
1. Is an employee protected from unlawful
discrimination by an employer due to military affiliation?
Yes. The USERRA provides protections for initial
hiring and adverse employment actions by an employer if the
actions relate, even in part, to the employee's military
service. This protection also extends to potential witnesses of
a discriminatory action on the part of the employer.
2. What are the basic eligibility requirements
for job protection under USERRA?
To be protected, a National Guard or Reserve
member must have a civilian job, must provide timely
notification to the employer of military duty, and must report
back to work for reemployment in a timely manner. Reemployment
rights are provided even if the civilian job is described as
"temporary," unless the employment was for a brief period with
no reasonable expectation of continuance for a significant
period of time.
3. Is there a limit to the amount of active duty
an employee can perform and still have reemployment rights?
Yes, there is a 5-year cumulative total of
military service an employer is required to support. Not
included in that total are: involuntary recall to active duty,
drills (inactive duty training), annual training, and additional
training requirements determined and certified in writing by the
Service Secretary concerned to be necessary for professional
development or for completion of skill training or retraining.
4. Does USERRA apply to "state" military duty or
governor call-ups of National Guard members?
No. However, protection for such duty is
generally provided by state statutes and in most instances is
comparable to protections provided under the USERRA.
5. When should an employee provide notification
of upcoming duty?
Written or oral notification must be made to
employers prior to going on duty, unless precluded by military
necessity. Employees are highly encouraged to notify their
employer of any "window" of anticipated military activity, when
application for orders is made, or if notified of possible
involuntary recall. Employees should be sensitive to employer
scheduling requirements when providing notification and when
submitting application to the unit commander for orders. Where
possible, an employee should submit requests for orders during
calendar periods outside of peak business seasons and not during
the most popular vacation cycles.
6. Does an employee have reinstatement rights
following voluntary military service?
Yes. There is no longer any differentiation
between voluntary and involuntary orders under the USERRA, so
long as the basic eligibility requirements are met.
7. What if an employee does not return in a
timely manner to work?
The employee is subject to the personnel policies
and practices of the employer for unexcused absences.
8. How does military service affect employee
status or seniority in the workplace?
An employee must be considered not to have been
absent from the workplace if the only reason for that absence
was service in a uniformed service. A returning employee must be
made "whole" by:
·
Being allowed to contribute to the pension plan any amount that
would have been contributed had the employee not been absent
·
Being reinstated with privileges and status the employee earned
by length of service (for example, after 3 years with a company
an employee may be entitled to accrue more vacation per year, or
after 5 years an employee is automatically advanced to a
management position.)
9. What are the rules on contribution to the
pension or thrift savings plan for periods of military leave of
absence?
Upon reemployment, the employee has 3 times the
length of service (not to exceed 5 years) to make payments and
the employer is liable to fund any resulting obligation of the
plan within the same time frame.
10. Can an employee contribute to the pension
plan when on military leave of absence?
There is no burden under the law for an employer
to continue pension contributions while the employee is away
from the work site. An employer may choose to offer this
benefit.
11. What are the rules for entitlement to health
insurance?
For absence of less than 30 days, benefits
continue as if the employee has not been absent. For absence of
31 days or more, coverage stops unless the employee elects to
pay for cobra-like coverage (for a period of up to 18 months).
Health insurance must be reinstated the day an employee is
reinstated with no waiting period.
12. Does an employee accrue vacation or
medical/sick days from the employer while on military leave of
absence?
No. However, as in the previous question, an
employer may choose to offer accrual of vacation or medical/sick
days as an additional benefit. An employer is not required under
USERRA to provide any paid benefit when an employee is not
working at the work site.
13. Does an employee have the right to make up
periods of work missed due to drill or military leave of
absence?
No. An employer may choose to offer an employee
the opportunity to work hours missed as a benefit not provided
under the USERRA. For example, an employer is not required to
provide hours of work for an average 2-week, 80-hour period if
part of that period is missed due to military service.
14. After completion of weekend drill, what is
the time limit for an employee to return to work?
Either the beginning of the next regularly
scheduled work day or during that portion of the next regularly
scheduled shift that would fall eight hours after the end of
drill and a reasonable amount of time to commute home. For
example, an employer cannot require a service member who returns
home at 10 p.m. to report to work 2.5 hours later at 12:30 a.m.
However, the employer can require the employee to report for the
6 a.m. shift, or scheduled work period, the next morning (after
reasonable commute from military duty to home followed by
8-hours). Included in the 8 hour period is time for rest and the
commute to work.
15. What is the time limit for an employee to
return to work after Annual Training or other types of extended
military leave of absence?
Time limits for returning to work depend on the
duration of the orders. The rules are:
Service of 1 to 30 days: the beginning of the
first regularly scheduled work day or 8 hours after the end of
the military duty, plus reasonable commuting time from the
military duty station to home. Service of 31 to 180 days:
application for reinstatement must be submitted not later than
14 days after completion of military duty.
Service of 181 or more days: application for
reinstatement must be submitted not later than 90 days after
completion of military duty.
16. What if the employee has an accident, is
delayed by lack of military transportation, or is otherwise
unable to report back in a timely manner?
The employee must report back to work as soon as
possible. If the reason for the employee's delay is not related
to military duties, the employee is subject to the personnel
policies and practices the employer would normally apply to
employees with unexcused absences.
17. What if an employee is injured or incurs a
disability during military duty?
The deadline for reinstatement may be extended
for up to 2 years for persons who are convalescing due to a
disability incurred or aggravated during military service, and
employers must make reasonable accommodations for the
impairment.
18. What job position is an employee returned to
after military leave of absence?
Except with respect to persons whose disability
occurred in or was aggravated by military service, the position
into which an employee is reinstated is determined by priority,
based on the length of military service. The rules are: Service
of 1 to 90 days: (a) in the job the person would have held had
he or she remained continuously employed (possibly a promoted
position), so long as the person is qualified for the job or can
become qualified after reasonable efforts by the employer, or
(b), if the person cannot become qualified, in the position the
person was employed on the date of the commencement of the
military service. Service of 91 or more days: (a) same as for
service of 1 to 90 days, or a position of like seniority, status
and pay, so long as he or she is qualified, or (b) if the person
cannot become qualified, in the position the person was employed
on the date of the commencement of the military service or which
nearly approximates that position.
Note: The reemployment position with the highest
priority reflects the "escalator" principle, which requires that
a returning service member steps back onto the seniority
escalator at the point the person would have occupied if the
person had remained continuously employed.
19. Where do I go for information or assistance?
Even with the best of communication and
partnership between employers and their employees that are
members of the National Guard or Reserve, questions and concerns
do arise related to the adverse consequences of military
service. How should you handle them?
For members of the National Guard or Reserve,
your first approach should be to go to your employer. Most
often, a calm, objective discussion can lead to an acceptable
solution if it is conducted in an atmosphere of mutual respect
and cooperation.
If you can't come up with a workable solution, go
to your unit commander for advice and support. Even with their
focus on mission accomplishment, commanders have a vested,
long-range interest in their people. It's best for the unit to
resolve your problem. They may be able to better explain the
situation to you and your employer. A lot of times, they can
suggest compromises or alternatives that will satisfy everyone's
needs.
If these attempts don't succeed, please read the
following carefully:
Important Note. Through the National Committee
for Employer Support of the Guard and Reserve (ESGR), the
Department of Defense (DoD) works hard to obtain and sustain
employer and community support for National Guard and Reserve
members who periodically are absent from their civilian jobs to
perform military duty. If you have a question about
employment rights, the experts- DoD, the U.S. Department of
Labor Veterans' Employment and Training Service (VETS), and ESGR-suggest
you start by contacting ESGR. This is not only your best
option for speedy resolution; it protects all your levels of
appeal if they are needed.
You can contact ESGR Ombudsmen Services through
your local
ESGR Committee or the
National ESGR Headquarters or use our toll-free number,
(800) 336-4590-ask for Ombudsmen Services. ESGR Ombudsmen are
qualified to help, sympathetic to the needs of both the
employers and employees, and committed to remaining impartial in
their counsel.
The Ombudsmen Services Program was established in
1974 to provide information, counseling, and informal mediation
of issues relating to compliance with the Uniformed Services
Employment and Reemployment Rights Act (USERRA). The Ombudsmen
Services Program provides information, informal mediation, and
referral service to resolve employer conflicts. ESGR is not an
enforcement agency and does not offer legal counsel or advice.
More than 95 percent of all such requests for assistance are
resolved in this informal process, without requiring referral to
the Department of Labor for formal investigation.
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