The Uniformed Services Employment and Reemployment Rights Act of 1994 was passed by U.S. Congress and signed into law by President Bill Clinton to protect the civilian employment of active and reserve military personnel in the United States called to active duty. The law applies to all United States uniformed services and their respective reserve components.
The Act also applies to all employers, regardless of size.
Here is an overview of the Act for Connecticut employers…
The Act:
- Applies to employees who perform duty, voluntarily or involuntarily, in the “uniformed services,” which include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services. Federal training or service in the Army National Guard and Air National Guard also gives rise to rights under USERRA. In addition, certain disaster response work (and authorized training for such work) is considered “service in the uniformed services.”
- Uniformed service includes active duty, active duty for training, inactive duty training (such as drills), initial active duty training, and funeral honors duty performed by National Guard and reserve members, 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.
USERRA requires employers to provide employees with notice of the rights, benefits, and obligations under USERRA.
USERRA requires employers to reemploy servicemembers returning from a period of service in the uniformed services if those servicemembers meet five criteria:
- Must have been absent from a civilian job on account of service in the uniformed services;
- Must have given advance notice to the employer that he or she was leaving the job for service in the uniformed services, unless such notice was precluded by military necessity or otherwise impossible or unreasonable;
- The cumulative period of military service with that employer must not have exceeded five years (with certain exceptions allowed for situations such as call-ups during emergencies, reserve drills, and annually scheduled active duty for training).
- Must not have been released from service under dishonorable or other punitive conditions.
- Must have reported back to the civilian job in a timely manner or have submitted a timely application for reemployment, unless timely reporting back or application was impossible or unreasonable.
The time limits for the servicemembers to return to work from a military leave under USERRA 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.
- Returning servicemembers must be reemployed in the job that they would have attained had they not been absent for military service, (the “escalator” principle), with the same seniority, status and pay, as well as other rights and benefits determined by seniority (i.e., as if he never left for military duty). USERRA also requires that reasonable efforts (such as training or retraining) be made to enable returning servicemembers to qualify for reemployment. If the servicemember cannot qualify for the “escalator” position, he or she must be reemployed, if qualified (with or without reasonable accommodation), in any other position that is the nearest approximation to the escalator position and then to the pre-service position.
While an individual is performing military service, he or she is deemed to be on a furlough or leave of absence and is entitled to the non-seniority rights accorded other similarly-situated individuals on non-military leaves of absence.
Servicemember is able (but not required) to use accrued vacation while performing military duty.
Individuals performing military duty of more than 30 days may elect to continue employer sponsored health care for up to 24 months (at the employee’s full expense under COBRA – i.e., they may be required to pay up to 102 percent of the full premium). For military service of less than 31 days, health care coverage is provided as if the servicemember had remained employed.
For purposes of defined benefit plans, defined contribution plans as well as plans provided under federal or state laws governing pension benefits for government employees, USERRA treats military service as continuous service with the employer for participation, vesting and accrual of benefits.
An employer cannot discharge any employee who is reinstated after return from military duty during first year of reemployment unless there is cause.
USERRA prohibits employment discrimination against a person on the basis of past military service, current military obligations, or an intent to serve.
Conn. Gen. Stat. 27-33a requires employers to provide employees, who serve in the state armed forces or in the reserve corps of any branch of the U.S. armed forces, with military leave (including for meetings and drills) during regular working hours. Such employees may not be subject, directly or indirectly, to any loss or reduction of vacation or holiday privileges or be subject to discrimination in promotion or continuation of, or reappointment to, employment as a result of their service.
If you are an employer in Connecticut and have questions about labor and employment law, contact the attorneys at Kainen, Escalera & McHale. Each of us has over 20 years of experience in all aspects of employment law and labor law and can help you with this complicated topic. Please contact us if we can help you.
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