MILITARY RESERVISTS

The Uniformed Services Employment and Reemployment Rights Act (USERRA)

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USERRA (“Uniformed Services Employment and Reemployment Rights Act”) provides reemployment rights to employees called to active duty military service under certain circumstances; it prohibits discrimination and retaliation in employment against uniform service members; and it provides health insurance protection for service members and their families.

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The basic principles of USERRA require employers to:

•    Return employees who have undertaken military service to the same standing they would have held had they never left for military service, and
•    Treat employees that serve in the military the same as their colleagues who remain in the workplace.
•    Specifically, employers cannot, by reason of an employee’s active military duty or training obligations, deny that employee:
•    Initial employment
•    Reemployment
•    Retention in employment
•    Promotion
•    Seniority or any benefit, including health insurance and pension

Re-employment: USERRA guarantees employees the right to be re-employed at their same or similar job for up to five years from the time they are called-up for military service.

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Seniority: Re-employed individuals are entitled to all the seniority that they had on the date they commenced service in the uniformed service, as well as any additional seniority rights and benefits they would have received if they had been continuously employed.

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Health Insurance: When the employee has family health care coverage, the plan must allow the person to elect to continue coverage for the person’s dependents. The employee may be required to pay no more than 102% of the full premium under the plan, unless their absence is less than 31 days. Those absent less than 31 days pay only the employee share.

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Pension: When an employee on military leave has pension benefits, he or she must be treated as if continuously employed.

EMPLOYER OBLIGATIONS AND EXEMPTIONS

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Change in business circumstances
Employers do not have to reemploy returning service members if business circumstances have changed so much that it would be impossible or unreasonable.

Dishonorable discharge
A serving employee who receives a dishonorable or bad conduct discharge loses all rights under USERRA. If the violations of USERRA are found to be willful, employers must pay the employee liquidated damages, attorneys' fees, and costs.

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The changes to USERRA also increased the health insurance continuation coverage requirements from 18 months to 24 months. Employers who provide health insurance to their employees must now offer 24 months of continuation coverage to employees on military leave under USERRA. For the first 30 days of military leave, employees may receive the continuation coverage at their normal premium rate. For leaves greater than 30 days, the employee may be required to pay up to 102% of the full premium rate for the duration of the continuation coverage, much like the coverage offered departing employees under COBRA.

Effective March 10, 2005, all employers, regardless of size, must post notice to all employees of their rights and benefits under the Uniformed Services Employment and Reemployment Rights Act (USERRA). The new posting requirements were signed into law on December 10, 2004 as part of the Veterans Benefits Improvement Act of 2004, which also modified and extended housing, education and other benefits for veterans. The Department of Labor (DOL) has developed a model notice, which employers are required to post "where employers customarily place notices for employees."