On this designated Veteran’s Day, it seems an appropriate time to highlight some common issues that pop up frequently on USERRA issues, particularly as they may affect returning veterans. Veterans, and interested employers, should also seek out the Department of Labor’s website designed specifically to address these issues.
What Employers Are Covered by USERRA?
Any person, institution, organization, or other entity that pays salary or wages for work performed or that has control over employment opportunities. There are no exceptions to coverage for the type of organization (i.e. charitable or government) or for small employers.
What Employees Are Covered?
Any person employed by an employer. This includes any person who is a citizen, national or permanent resident alien of the United States employed in a workplace in a foreign country by an employer that is an entity incorporated or otherwise organized in the United States or that is controlled by an entity organized in the United States. It also applies to temporary, part-time, probationary, and seasonal employees.
Are There Any Exceptions?
Yes. Those employees who were employed for a “brief, nonrecurrent period” with no reasonable expectation of continued employment for an indefinite or significant period may not be covered by the reemployment provisions.
Is Just Service in the Army, Navy, Air Force and Marines Covered?
No. Service in the Coast Guard, and Public Health Service Commissioned Corp. is also covered as are individuals who partake in federal training in the Air National Guard. In addition, service in the Reserve Corps of each unit is also covered.
What are Some of the Benefits Rights?
- Non-seniority benefits rights include benefits awarded for work performed or subject to a significant contingency. Covered employees are entitled to such non-seniority rights and benefits as they are available to “similarly situated” employees on furlough or leave of absence.
- Seniority based benefits include those rights and benefits determined by the seniority that the person had before military leave. Covered Employee is entitled to the additional seniority, rights and benefits he/she would have attained if he or she had remained continuously employed. If the service member misses opportunity or eligibility for promotion based on skill test or examination, employee is entitled to take test upon return, after a reasonable amount of time to adjust.
Is the Employee In Service Entitled to Health Care Continuation?
Yes. It’s similar to (but not the same as) dealing with COBRA. It applies to all employers (not just those with 20 employees or more). The Employer cannot charge more than regular employee contribution during first 30 days of coverage. After that, the employer may charge up to 102% of total premiums for coverage when employee serves 31 days or more (starting from first day of continuation coverage). It’s available only to employees covered by the health plan at the time service began. The maximum mandated period of coverage (including dependents) ends on the earlier of 24 months after service begins; or The date on which the person fails to apply for or return to employment following the end of service
What About USERRA’s Broad Reemployment Provisions?
In order to qualify, the employee must be absent from a position of civil employment to report for military service, and must have provided the employer with advance notice of the absence. Moreover, the cumulative length of his or her absence must not exceed five years with a particular employer. In addition, the individual must timely return to work or apply for reemployment. Lastly, the employee must not have been separated from service with a disqualifying discharge.
When Can An Employer Avoid Reemployment?
Under limited circumstances:
- Changed circumstances such as an intervening reduction in force that would have included the absent employee;
- The individual is no longer qualified, despite the employer’s reasonable efforts to qualify the employee); or
- The employee was employed for a brief, non-recurrent period
Obviously, there is much more to this statute. Employers in Connecticut who have employees entering or returning from service should make sure their policies and procedures incorporate the requirements of USERRA into them. Additional state laws may apply.