Neither USERRA nor any other federal statute gives you the right to insist that a civilian employer reinstate you when you return from a period of FEMA reservist duty. USERRA 101 Although the Department of Defense may or may not use these sites as additional distribution channels for Department of Defense information, it does not exercise editorial control over all of the information that you may find at these locations. Because USERRA turns all of our usual expectations of a leave of absence law upside down. In general, a person reemployed under USERRA is entitled to the rate of pay he or she would have attained, with reasonable certainty, if continuously employed during the period of service. The employee is not required to ask for or get his or her employer’s permission to leave to perform military service. USERRA is a federal statute that protects servicemembers’ and veterans’ civilian employment rights. Returning from active duty or TDY. USERRA does not require the employer to establish a health plan if there is no health plan coverage in connection with the employment or, where there is a plan, to provide any particular type of coverage. It includes all elements of compensation such as drawing accounts, bonuses and shift premiums. It provides returning service members a virtually unfettered right to re-employment with their pre-service employers upon timely application for return to work. USERRA only allows make-up contributions with the same employer that you worked for before you left for military service. Yes. Depending on the circumstances, the escalator principle may cause an employee to be seniority or job classification would have resulted in the employee being laid off during the period of service, and the layoff continued after the date of reemployment, reemployment would reinstate the employee to layoff status. )2 About Sam Wright 1.1.1.7—USERRA applies to state and local governments 1.1.3.3—USERRA applies to National Guard service 1.3.1.2—Character and duration of service Under USERRA, upon returning to work, an employee is entitled to all seniority rights and benefits (1) that he had on the date that he left for service, and (2) that he would have attained if the employee had remained continuously employed. For example, if the employer characterizes the employee as “terminated” while performing military service, this characterization cannot be used to avoid USERRA’s requirement that the employee be deemed on furlough or leave of absence, and therefore entitled to the non-seniority rights and benefits generally provided to employees on furlough or leave of absence. VETS interprets and provides guidance on USERRA, and investigates complaints filed under this law. Service performed in a uniformed service if he or she was ordered to or retained on active duty under the following circumstances: The employee is deemed to be on furlough or leave of absence from the civilian employer while performing military duty. In the event a conflict arises that the employee and employer are unable to resolve, ESGR’s trained ombudsmen can provide mediation. USERRA, which was passed in 1994, provides many protections. When appropriate, DOL/VETS can refer a case to the Office of Special Counsel Merit Systems Protection Board. The Defense Department “strongly recommends that advance notice to civilian employers be provided at least 30 days prior to departure for uniformed service when it is feasible to do so.”. USERRA entitles most returning service members to reemployment after a period of service. could provide focused training to affected staff on USERRA return-to-duty rights and obligations, time frames, etc. Discover what servicemembers must be aware of when returning to work. Additionally, an employer cannot retaliate against an individual by taking any adverse employment action against him or her because the individual has taken an action to enforce a protection afforded any person under USERRA; testified or otherwise made a statement in or in connection with a proceeding under USERRA; assisted or participated in a USERRA investigation; or exercised a right provided for by USERRA. Because of the sacrifices that military service members make while serving, the Servicemembers' Civil Relief Act (SCRA) and the Uniformed Services Employment and Reemployment Relief Act of 1994 (USERRA) provide service members with military service benefits for financial relief and job protection. It also has information about filing employment claims if you experience any employment issues related to your service in the National Guard. USERRA provides robust reemployment rights and protections for employees who return to work from uniformed service leave. USERRA also has protections for job applicants and for servicemembers after they have returned to work. The principle behind the escalator position is that, if not for the period of military service, the employee should be reemployed in a position that reflects with reasonable certainty the pay, benefits, seniority, and other job perquisites that he or she would have attained if not for the period of service. Such links are provided consistent with the stated purpose of this website. You are about to leave the Military OneSource site. The employee may apply verbally or in writing to the pre-service employer or to an agent or representative of the employer who has apparent responsibility for receiving employment applications. The employee is only required to give the employer notice of pending service. The time limit to report to you depends on the employee’s length of service: For service of 1 to 30 days, the employee must report back to you at the beginning of the first regularly scheduled work period on the next calendar day (after the employee completes Once the parties involved file a formal complaint with the Department of Labor or hire private council, ESGR ombudsmen can no longer offer assistance. employer upon their timely application for return to work . Such links are provided consistent with the stated purpose of this website. Upon an employee’s return from service in the uniformed services as defined by USERRA (20 CFR §1002.6; see also Government Code §31649), the employee may be able to purchase retirement service credit that would have been earned had the employee not been absent. The employee is not required to decide in advance of leaving the civilian employment position whether he or she will seek reemployment after completing uniformed service. Discover what servicemembers must be aware of when returning to work. Yes. The USERRA does not provide a claim for hostile work environment. Whether the service the individual performs is an integral part of the employer’s business. Learn about USERRA and how it helps veterans return to civilian life. This protection applies to employees who are full time, part time, or probationary, so long as the employment is not brief, non-recurring and not expected to continue for a significant period. 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