Friday, July 24, 2009

Respect Employees in the Military

We have grown to better appreciate our military and the men and women who serve in the armed forces. It is not uncommon to witness uniformed servicemen getting applause in an airport or being honored and recognized at a sporting event. However, the same level of respect is not always given in the workplace. Employers need to understand that the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) protects employees who are called to service. USERRA is intended to provide military service members the ability to return to their jobs with credited seniority following absence due to service. The rights provided under USERRA include:

  • non-discrimination based on military status;
  • reinstatement rights to the position and pay that the employee would have held had the employee remained continuously employed;
  • continuation of medical benefits for service under 30 days;
  • optional continuation of medical benefits;
  • all seniority, rights and benefits upon return to work as if the employee had remained continuously employed; and
  • protection from discharge upon return to work, except for cause, for a period of time.
The US Department labor has jurisdiction over USERRA claims and can investigate any violations of that law. If the DOL cannot resolve a complaint directly with the employer, the matter is referred to the Department of Justice (DOJ). The DOJ has the ability to file a lawsuit in the appropriate federal district court on behalf of the aggrieved employee.

All employers should review their policies and procedures to make sure that they are in compliance with USERRA, including having the required posted notice apprising employees of their rights under USERRA. An employee returning from military service should be reinstated as dictated under law and must not be discharged subsequent to his/her return per USERRA.

In addition, recent changes to the Family and Medical Leave Act (FMLA) set forth military leave rights under that law.

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