When an employee has military commitments, it can cause an inconvenience to the employer. But the employer cannot punish an employee for meeting those commitments, and must be flexible.
Federal and state laws protect our service members from losing their jobs because they need time away to fulfill their duties, The federal law is the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”). Pennsylvania law provide similar protections through the Pennsylvania Military Affairs Act (“PMAA”).This article will focus on the USERRA.
Who is covered under USERRA?
persons performing duty, voluntarily or involuntarily, in the “uniformed services,” which include;
- Army
- Marine Corps
- Navy
- Air Force
- Coast Guard
Also, Public Health Service commissioned corps, as well as the reserve components of each of the above listed services. Federal training or service in the Army National Guard and Air National Guard also gives rise to rights under USERRA, certain disaster response work (and authorized training for such work) is considered “service in the uniformed services.”
The USERRA also prohibits reprisal against anyone who “has assisted or otherwise participated in an investigation” or “exercised a right provided for in” the statute, and specifically applies to all persons “regardless of whether that person has performed services in the uniformed services.”
What services are covered under USERRA?
Uniformed service includes;
- active duty
- active duty for training
- inactive duty training
- initial active duty training
Also, funeral honors duty performed by National Guard and reserve member as well as the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty.
What employees are covered and which employers does USERRA apply to?
USERRA covers nearly all employees, including part-time and probationary employees. USERRA applies to virtually all U.S. employers, regardless of size.
Employee rights under USERRA
- Returning service members are to be reemployed in the job that they would have attained had they not been absent for military service, with the same seniority, status and pay, as well as other rights and benefits determined by seniority.
- Reasonable efforts (such as training or retraining) be made to enable returning service members to qualify for reemployment. If the service member cannot qualify for the position, he or she must be reemployed, if qualified, in any other position that is the nearest approximation to the position and then to the pre-service position.
- When an individual is performing military service, he/she is deemed to be on a furlough or leave of absence and is entitled to the non-seniority rights and benefits accorded other similarly-situated individuals on non-military leaves of absence. The time limits for returning to work are as follows:
• Less than 31 days service: By the beginning of the first regularly scheduled work period after the end of the calendar day of duty, plus time required to return home safely and an eight hour rest period. If this is impossible or unreasonable, then as soon as possible.
• 31 to 180 days: The employee must apply for reemployment no later than 14 days after completion of military service. If this is impossible or unreasonable through no fault of the employee, then as soon as possible.
• 181 days or more: The employee must apply for reemployment no later than 90 days after completion of military service.
• Service-connected injury or illness: Reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing.
Health and pension plan coverage for service members is also addressed by USERRA.
We have brought successful USERRA and PMAA claims against employers who broke the law. If you have questions about your rights under the USERRA or PMAA, call for a free telephone consultation.